Hamilton v. Browning
| Decision Date | 26 March 1884 |
| Docket Number | 10,560 |
| Parties | Hamilton et al. v. Browning et al |
| Court | Indiana Supreme Court |
From the Monroe Circuit Court.
Affirmed, with costs.
S. B Voyles and H. Morris, for appellants.
G. W Friedley, E. D. Pearson and N. Crooke, for appellees.
Action by the appellees against the appellants to recover the possession of a horse. The venue was changed to the court below from the Lawrence Circuit Court, in which the action was commenced.
The appellants answered jointly in two paragraphs. The appellant Alice M. Hamilton filed a cross complaint, which is designated as the third paragraph of the answer. The appellees' demurrer, filed to the second paragraph of the answer, was sustained. The appellees answered the cross complaint in three paragraphs, to the second and third paragraphs of which the appellant Alice unsuccessfully demurred. She then replied by the general denial. The issues were tried by the court and a finding made in favor of the plaintiff Browning, but against the other plaintiffs. Judgment was rendered on the finding over the appellants' motions in arrest of judgment and for a new trial. The rulings mentioned were severally excepted to, and are assigned for error.
The objections urged against the complaint have been removed by a full copy of that pleading which has been certified, under a certiorari, since the filing of appellants' brief.
The first paragraph of the appellants' answer was the general denial. The facts stated in the second paragraph of their answer amounted to nothing more than a special denial, and as evidence of such facts was admissible under the first paragraph, the error, if any, of sustaining the demurrer to the second paragraph, was harmless.
In her cross complaint, the appellant Alice sought to foreclose a mortgage on the property in controversy. This mortgage was alleged to have been executed by her co-appellant to Daniel D. Hamilton to secure the payment of a note for $ 100. She averred in her cross complaint that the mortgage had been assigned to her, but there was no allegation that the note secured by the mortgage had been transferred to her. The assignment of a mortgage, without the assignment of the debt secured by it, transfers nothing to the assignee. Hough v. Osborne, 7 Ind. 140; Johnson v. Cornett, 29 Ind. 59; Hubbard v. Harrison, 38 Ind. 323. The cross complaint being wholly insufficient, there was no available error in overruling the appellants' demurrer to appellees' second and third paragraphs of answer thereto. A bad answer is good enough for a bad complaint. Without deciding the question, it may be suggested as doubtful, whether, in an action like the present, the remedy sought by the cross complaint would be allowable in any event.
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