Harless v. Petty

• Decision Date: 16 October 1884
• Docket Number: 11,544
• Citation: 98 Ind. 53
• Parties: Harless et al. v. Petty et al
• Court: Indiana Supreme Court

98 Ind. 53

Harless et al. v. Petty et al

No. 11,544

Supreme Court of Indiana

October 16, 1884

From the Madison Circuit Court.

C. L Henry, H. C. Ryan and E. P. Schlater, for appellants.

D. C Chipman, W. R. West, J. W. Sansberry and M. A. Chipman, for appellees.

OPINION

Franklin C.

A case for the same thing and between the same parties has heretofore been before this court. Harless v. Petty, 84 Ind. 269. The judgment in that case was reversed on an objection to the complaint, that it contained no averment of a demand for the execution of a deed.

When the case went back to the court below, it was dismissed, a demand made for a deed, and a new suit commenced for the same things.

A demurrer to the new complaint was overruled; when appellants moved the court to stay proceeding until appellees paid the costs in the former suit, which had been dismissed. The motion was overruled by the court. Issues were formed; there was a trial by the court; finding for plaintiffs; and over motions for a new trial judgment was rendered for plaintiffs. Appellants have assigned as a joint error the overruling of the demurrer to the complaint.

Appellants Adam and Elizabeth Harless have assigned as separate errors the overruling of the motion to stay proceedings, overruling the separate demurrers of Adam and Elizabeth to the complaint, and overruling the motions for new trials, and to modify the judgment.

The suit is for a specific performance of an agreement to sell real estate, possession of the real estate and damages. The objection urged against the complaint is that it does not show a sale of the land by Harvey Snell to William Snell.

The complaint alleges that "in the year 1869, Harvey Snell was indebted to his son William Snell, in the sum of $ 500, with six per cent. interest thereon from 1865, * * and, being unable to pay the same, contracted and agreed with said William that if he would give him further time in which to pay said sum so owing, * * he, Harvey Snell, would put said William Snell into possession of the said land, and would assist him in erecting a house thereon to live in and other buildings, and if he did not pay said money so owing in a short time, he, Harvey Snell would make him, William Snell, a deed of conveyance to said tract of land." That in pursuance thereof William took possession and made lasting and valuable improvements thereon; that Harvey never paid the debt or any part thereof; that a demand was made for compliance, and a refusal by defendants.

We think the complaint substantially shows a sale of the land upon the condition that the money was not paid in a short time. There was no error in overruling the demurrers to the complaint.

Appellants' motion to stay proceedings was based upon a a written statement filed, alleging that appellees had voluntarily dismissed the former suit, had not paid the costs thereof, and were insolvent.

Appellees answered said motion by averring the former trial, the recovering of a judgment for the land and for damages, the appeal to the Supreme Court, and the reversal of the judgment upon a technical objection to the complaint, that it did not allege a demand for a deed before the bringing of the suit. No demand had been made, and, under the decision of this court, appellants could not recover without a demand before suit brought; they were, therefore, compelled to dismiss that suit in order to make a demand preparatory to commencing a new suit; that they had a meritorious cause of action; that this suit was not brought for vexation or annoyance, but for the purpose of obtaining justice, and they denied the plaintiffs' insolvency.

To this answer a reply was filed, alleging that an execution from the Supreme Court for the costs had been returned nulla bona. To this reply a demurrer was sustained, and the motion to stay proceedings was overruled.

The order to stay proceedings until the payment of costs in a former action is not to be made in every case as a matter of right. It is a matter of sound discretion to be exercised by the courts under the facts and circumstances of each case. Henderson v. Griffin, 5 Peters 151.

The order, when granted, as shown by the adjudicated cases, is upon the ground that the second action is without merit and vexatious. In some of the cases, want of merit and the vexatious character of the action were made to appear by the application for the order. In others, these were presumed in...