Hargrove v. John

Decision Date10 October 1889
Citation22 N.E. 132,120 Ind. 285
PartiesHargrove v. John et al.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Hancock county; M. E. Forkner, Judge.

Action by George John and Mary C. John against Theophilus Hargrove, on two promissory notes. Judgment for plaintiffs and defendant appeals.

New & Jones, for appellant. J. L. Mason and J. H. Mellett, for appellees.

Olds, J.

This is an action by the appellees against the appellant on two promissory notes, one for $2,500 and the other for $1,500. The defendant answered in four paragraphs. The plaintiffs filed a separate demurrer to each paragraph of answer. The court sustained the demurrer to the fourth paragraph and overruled it as to the others. The fourth paragraph alleged that the plaintiffs' interests in the notes were separate, each owning a certain amount of the notes and pleading a set-off against the interest of each. The defendant, Hargrove, without taking leave to amend the fourth paragraph, filed an additional paragraph of answer numbered 5, setting up substantially the same facts and pleading the same items of set-off, which fifth paragraph was demurred to and the demurrer overruled, and the plaintiffs filed a reply to the first, second, third and fifth paragraphs of the answer, and the cause was tried, resulting in a finding and judgment for plaintiffs for $224.68.

Error is assigned on the ruling of the court in sustaining the demurrer to the fourth paragraph of answer. In the case of Hunter v. Pfeiffer, 108 Ind. 197, 9 N. E. Rep. 124, the court says: “Where a demurrer has been sustained to a pleading, any other pleading subsequently found in the record, which presents substantially the same cause of action or defense, will be regarded as having been filed by leave of court as an amendment, and will be treated as having superseded the pleading or paragraph thereof which it amends. This too, without regard to the manner in which the subsequent pleading is entitled.” To the same effect is the holding of the court in Trisler v. Trisler, 54 Ind. 172. This is a just and equitable rule. The appellant was in no way injured by the ruling of the court in sustaining the demurrer to the fourth paragraph. He was permitted to plead the same facts and set up the same defense in the fifth paragraph as was pleaded in the fourth. There is no available error in the ruling of the court sustaining the demurrer to the fourth paragraph of answer.

It is alleged in the first paragraph of the defendant's answer that the defendant was to have a discount of 2 per cent. on the amount of money paid to the plaintiffs upon the notes before the maturity of the $1,500, and that in pursuance of such agreement he had paid certain amounts before the maturity of the $1,500, and was thereby entitled to the discount of 2 per cent. on such amounts so paid. Upon the trial of the cause the evidence showed that the notes were in the hands of one Chandler for collection, and that defendant Hargrove had paid certain amounts upon the notes to said Chandler, Chandler having testified as a witness and stated that the notes were in his hands for collection, and that he had some instructions in regard to a discount to be allowed on the notes. The record shows that ...

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