Funk v. Rentchler

• Decision Date: 31 March 1893
• Docket Number: 15,877
• Citation: 33 N.E. 898,134 Ind. 68
• Parties: Funk, Guardian, et al. v. Rentchler et al
• Court: Indiana Supreme Court

33 N.E. 898

134 Ind. 68

Funk, Guardian, et al. v. Rentchler et al

No. 15,877

Supreme Court of Indiana

March 31, 1893

Original Opinion of February 18, 1893, Reported at: 134 Ind 68.

OPINION

Hackney, J.

The appellees, with great earnestness and skill, press upon us their petition for a rehearing. They urge us to recall our decision that the demurrer set out in the original opinion is sufficient in form. The argument of counsel, on the original hearing, was directed to the contention that the demurrer was to the paragraphs of answer jointly, and not severally. Any further point against the demurrer is contained in the following, which we quote from the brief of appellees'

"In the second place, we suggest that the instrument referred to as constituting the 'demurrers' to the 'second and fourth paragraphs' of answer is not sufficient to invoke the judgment of the court upon the sufficiency of the paragraphs referred to. Section 346, R. S. 1881, provides that where the facts stated in any paragraph of answer are not sufficient to constitute a cause of defense, the plaintiff may demur to it, under the rules prescribed for demurring to a complaint. A strict compliance with the statute governing demurrers has always been required by the courts. This demurrer, under this rule, is not sufficient. Peden v. Mail, 118 Ind. 556, 20 N.E 493."

The case cited holds insufficient a demurrer to a reply, stating as cause therefor that the facts are not sufficient to constitute a good reply. It is now insisted that the point was originally made that the words "in law," as employed in the demurrer, defeated its force in that it did not challenge the sufficiency of the pleading as stating an "equitable" defense.

We have stated all of the argument of counsel, and think it manifest that no such point was presented.

In Martin v. Martin, 74 Ind. 207, it is said: "If there are points in the record which counsel do not suggest, and we do not perceive them, there are numerous decisions that we will not consider such points on a petition for a rehearing." We confess to have observed no such point as that now ingeniously urged by counsel in their brief. The following cases are cited in support of the petition: Lane v. State, 7 Ind. 426; Tenbrook v. Brown, 17 Ind. 410; Gordon v. Swift, 39 Ind. 212; Kemp v. Mitchell, 29 Ind. 163; Porter v. Wilson, 35 Ind. 348; Cincinnati, etc., R. R. Co. v. Washburn, 25 Ind. 259. All of these cases were reviewed in Petty v. Board, etc., 70 Ind. 290, and a different interpretation given them from that contended for by appellees. The following additional cases are cited by the appellees: Martin v. Martin, supra; Pine Civil Tp. v. Huber Mfg. Co., 83 Ind. 121; Reed v. Higgins, Admr., 86 Ind. 143; Grubbs v. King, Assignee, 117 Ind. 243, 20 N.E. 142; Peden v. Mail, supra; Firestone v. Werner, 1 Ind.App. 293, 27 N.E. 623.

In each of these cases, as in all other cases cited, we find some element omitted from the demurrer, the presence of which was essential to its sufficiency. The contention here is not that anything has been omitted from the pleading, but that it contains two words which qualify and limit its operation, in that it does not question the sufficiency of the answers as stating equitable defenses. We can not hold that the pleader used the words in a technical and limited sense, since, under our code, we have no distinct forms of action, and the rules of pleading are defined without reference to any distinction between actions at law and in equity. The appellee insists upon a strict construction, and the application of rigid technical rules, and cites the cases last named as supporting his contention. We do not favor adherence to unduly rigid construction in...