Hall v. Brownlee

• Decision Date: 10 January 1902
• Citation: 28 Ind.App. 178,62 N.E. 457
• Parties: HALL v. BROWNLEE et al.
• Court: Indiana Appellate Court

28 Ind.App. 178

62 N.E. 457

HALL

v.BROWNLEE et al.

Appellate Court of Indiana, Division No. 2.

Jan. 10, 1902.

Appeal from circuit court, Gibson countyO. M. Wellborn, Judge.

Action by Paul S. Brownlee and others against John B. Hall.From a judgment in favor of plaintiffs, defendant appeals.Reversed.

C. A. Buskirk and John W. Brady, for appellant.A. P. Twineham and C. M. McRoberts, for appellees.

COMSTOCK, C. J.

The complaint is in one paragraph.Its material averments are as follows: That one Samuel Hall departed this life, testate, at Gibson county, Ind., in May, 1862, and by his last will bequeathed to his son Walter M. Hall $3,000 in bonds on Vanderburgh county, worth their face value, and bearing 6 per cent. per annum interest; that, by the further terms of said will, said bonds were to be held by the defendant, John B. Hall, another son of the testator, in trust for Walter, and at the death of Walter, in the event of his death without issue, the principal of said bonds was to be paid to the children of Catherine Hall by William P. Hall, another son of the testator theretofore deceased; that, further, by the terms of said will, there was to be paid to said children of Catherine and William P. Hall one-half of the yearly interest on said bonds, amounting to $90 a year; that the children of Catherine Hall by William P. Hall, above referred to, were Sally G. Hall, Maria Hall, and Samuel Hall, Jr.; that said Samuel Hall, Jr., died on the - day of October, 1869, leaving no wife, child, or debts, and leaving, as his heirs and only heirs at law, his mother, the said Catherine Hall, and his two sisters, the said Sally G. and Maria Hall; that afterward said Sally G. Hall intermarried with the plaintiffCharles Brownlee, and departed this life on the - day of May, 1879, leaving, as her heirs and only heirs at law, her said husband and the plaintiffs Paul and Thresa Brownlee, her children; that afterward said Maria Hall intermarried with the plaintiffCharles Brownlee, and departed this life on the - day of May, 1887, leaving, as her heirs and only heirs at law, her said husband and one child, the plaintiff Cornelia; that neither said Sally (Hall) Brownlee nor said Maria (Hall) Brownlee left any debts at her death, and that no administration was had on the estate of either of them; that the said Walter M. Hall was never married, and died, intestate, at Gibson county, Ind., on the 31st day of May, 1897.The will of Samuel Hall is made a part of the complaint by exhibit.The defendant answered by general denial and affirmatively in three other paragraphs.Demurrers of the appellees to the second, third, and fourth paragraphs of answer were sustained for want of sufficient facts.This put the case at issue.A fifth paragraph of answer was afterward filed, but no question is presented thereon upon this appeal.A trial by the court resulted in a judgment in favor of appellees for $3,430 and costs.The first, second, and third specifications of error challenge the correctness of the court's ruling in sustaining, respectively, the demurrers to each of the second, third, and fourth paragraphs of answer.The fourth is that “the court erred in not carrying plaintiff's demurrer to each separately of the second, third, and fourth paragraphs of the defendant's answer back to the amended complaint, and sustaining the same to said amended complaint.”

Counsel for appellant argue first the fourth specification of error, and insist that the demurrers should have been carried back and sustained to the complaint, which it is claimed failed to state facts sufficient to constitute a cause of action.Counsel for appellees contend that this is not a proper assignment of error under section 343, Rev. St. 1881(section 343, Burns'Rev. St. 1897), which provides: “Where any of the matter enumerated in section eighty-five (section 339) do not appear upon the face of the complaint, the objection (except for misjoinder of causes) may be taken by answer.If no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court over the subject of the action, and except the objection that the complaint does not state facts sufficient to constitute a cause of action: provided, however, that the objection that the action was brought in the wrong county, if not taken by answer or demurrer, shall be deemed to have been waived.”Counsel insist that an assignment under this section of the statute is required to conform strictly to its provisions, and that the specification in question does not so conform.In support of this claim, the case of Galvin v. Britton, 151 Ind. 1, 49 N. E. 1064, is cited.In that case the assignment is that the amended petition of the administratrix does not state facts sufficient to entitle her to the relief prayed.The supreme court held that the assignment did not respond to the requirements of the exceptions provided for by section 343, supra, and that, where a complaint is challenged for the first time in the supreme court on the ground that it does not state facts sufficient to constitute a cause of action, the assignment of error will be required to conform strictly to its provisions.The rule thus laid down clearly applied to the assignment then under consideration.The objection to the complaint attempted to be raised by appellant is that it does not state facts sufficient to constitute a cause of action.A failure to demur to the complaint does not, under the statute, waive that objection.Section 343, supra.The rule is founded upon the ground that one who has no cause of action is not entitled to judgment.A demurrer to an answer reaches back to the complaint whether the complaint is objected to or not, and must be sustained, not to the answer, but to the complaint, if it does not state facts sufficient to constitute a cause of action.Woollen, Tr. Proc. § 1708, and cases cited.The rule must be regarded as settled under our practice.As to the form of the fourth specification, we are of the opinion that it must, under Stockwell v. State, 101 Ind. 1, be held to be sufficient.In the opinion in that case it is said, at page 16: “One of the assignments of error by this appellant is that the court below erred in sustaining the demurrer to the third paragraph of answer.This assignment brings in question the sufficiency of that paragraph of answer, and requires an examination of it, but it does not require an examination of the complaint, or call in question its sufficiency.The statute requires that the errors relied upon shall be specifically assigned.Section 655, Rev. St. 1881.That the assignment of errors must be specific and definite, and that the questions to be considered...