Gilmore v. Ward
| Decision Date | 10 February 1899 |
| Docket Number | 2,716 |
| Citation | 52 N.E. 810,22 Ind.App. 106 |
| Parties | GILMORE v. WARD |
| Court | Indiana Appellate Court |
Rehearing denied March 28, 1899.
From the White Circuit Court.
Affirmed.
Frank Foltz, C. G. Spitler, H. R. Kurrie, E. B. Sellers and W. E Uhl, for appellant.
A. W Reynolds and A. K. Sills, for appellee.
Overruling a demurrer to the complaint and a motion in arrest of judgment are the only errors assigned. The complaint is in three paragraphs. The following demurrer to the complaint was filed: "The above-named defendant demurs to the plaintiff's complaint in the above entitled cause, and, for cause of demurrer, says all and severally, the following: (1) That the said complaint does not state facts sufficient to constitute a cause of action against the defendant; (2) that neither paragraph of said complaint states facts sufficient to constitute a cause of action against this defendant."
It is argued by appellee's counsel that this demurrer is joint, and not several. This view is supported by the authorities. The body of the demurrer is addressed to the whole complaint. The whole complaint is alleged to be bad, and one reason assigned is that neither paragraph is good. If the body of the demurrer is joint, it cannot be changed by assigning the causes separately. Silvers v. Junction R. Co., 43 Ind. 435; City of Connersville v. Connersville, etc., Co., 86 Ind. 235. Thus a demurrer which read, "The plaintiff demurs to the second, third, fourth, fifth, and sixth paragraphs of the answer of the defendants, and assigns for cause that neither of said second, third, fourth, fifth, and sixth paragraphs of answer alleges facts sufficient to constitute a defense to the plaintiff's cause of action," was held to be joint. Stanford v. Davis, 54 Ind. 45. In Meyer v. Bohlfing, 44 Ind. 238, a demurrer as follows: --was held a joint demurrer. In Washington Tp. v. Bonney, 45 Ind. 77, the following demurrer was held to be joint: "Come now the plaintiffs in the above entitled cause by their attorneys, and demur to the second, third, and fourth paragraphs of defendant's answer, for the following grounds of objections: (1) Said paragraphs of said answer, nor either of them, state facts sufficient to constitute a cause of defense to said plaintiff's complaint." In Cooper v. Hayes, 96 Ind. 386, the following was held to be a demurrer to the entire complaint: "Now at this time come Samuel Cooper and Anna Cooper, defendants, and demur to the first and second paragraphs of plaintiff's complaint, for the reason that the same, and neither one of the same, constitute a cause of action against the said defendants herein named." It follows that, unless each of the three paragraphs of the complaint is bad, the demurrer was properly overruled.
The second paragraph of the complaint avers that appellant agreed to pay appellee five and one-half cents per cubic yard for all dirt removed from a certain ditch according to the specifications for the ditch,--twenty-five per cent. to be paid at the end of the first, second, and third months, provided appellee work steadily, after deducting the price of two black mares, which was $ 150; all that was due appellee to be paid when the ditch was finished and accepted by surveyor; that appellee performed all the conditions on his part to be performed; "that plaintiff was to receive two black mares, and pay therefor $ 150, by deducting that amount from what was due him for said work, but the defendant refused to let plaintiff have said mares when demand...
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