Hart v. Haun
Decision Date | 19 December 1890 |
Docket Number | 14,635 |
Citation | 26 N.E. 61,126 Ind. 378 |
Parties | De Hart v. Haun |
Court | Indiana Supreme Court |
From the Warren Circuit Court.
Judgment affirmed, with costs.
W. P Rhodes and E. Stansbury, for appellant.
J McCabe and E. F. McCabe, for appellee.
This was an action brought by the appellant in replevin, for the possession of a mare. Execution was issued against the property of the appellant on a judgment rendered against him in the Warren Circuit Court, in favor of Jacob Etmire for $ 500 in an action for malpractice. The writ was placed in appellee's hands, as sheriff of said county, and levied upon said mare, which was the property of appellant. The appellant filed at the proper time, with the sheriff, a schedule of his property, duly verified, and demanded the mare as exempt from execution, and the sheriff refusing to allow the appellant an exemption, this suit was brought for the possession of the mare, alleging the facts. The appellee answered in denial, and by a second paragraph. The second paragraph alleged that the judgment upon which execution was issued was rendered in said case of Etmire against De Hart, which was one of tort, setting out a copy of the complaint in said cause, and that issue was joined by general denial and a trial had, and the judgment rendered upon the issue so joined. The appellant demurred to the second paragraph of answer, which was overruled and exceptions reserved, and the ruling assigned as error. It is contended by counsel for appellant that the action of Etmire against De Hart was on contract, and, therefore, he is entitled to an exemption; on the other hand, it is contended by counsel for appellee that the action was in tort, and that appellant is not entitled to an exemption. The question to be determined arises upon the complaint in the action for malpractice.
The complaint is as follows:
etc.
We think it clear that this complaint is for the tort, and not a suit upon a contract. The complaint alleges no more than the law imposed upon the defendant, and is implied on the part of the surgeon from undertaking the services, and it does not attempt to allege a contract and breach thereof.
In 1 Chitty Pleading, p. 397, it is said: ...
To continue reading
Request your trial-
Holt Ice & Cold-Storage Co. v. Arthur Jordan Co.
...43;Lane v. Boicourt, 128 Ind. 420, 27 N. E. 1111;Greentree v. Rosenstock, 61 N. Y. 583;Austin v. Rawdon, 44 N. Y. 63. In De Hart v. Haun, 126 Ind. 278, 26 N. E. 61, the words used in the pleading could not be construed as a promise, for the reason that no consideration was alleged. In Boor ......
-
Harrod v. Bisson
...Goble v. Dillon et al., 86 Ind. 327, 44 Am. Rep. 308;Boor, Adm'r, v. Lowery, 103 Ind. 468, 3 N. E. 151, 53 Am. Rep. 519;De Hart v. Haun, 126 Ind. 378, 26 N. E. 61. The original complaint being based upon tort, the amended complaint unquestionably related back to the time of the filing of th......
-
Miller v. Mintun
... ... in another similar complaint against a physician by the ... Supreme Court of Indiana. De Hart v. Haun, ... 126 Ind. 378, 26 ... ...
-
The Holt Ice And Cold Storage Co. v. The Arthur Jordan Co.
...Boicourt, 128 Ind. 420, 25 Am. St. 442, 27 N.E. 1111; Greentree v. Rosenstock, 61 N.Y. 583; Austin v. Rawdon, 44 N.Y. 63. In DeHart v. Haun, 126 Ind. 378, 26 N.E. 61, the words used in the pleading could not be construed as promise, for the reason no consideration was alleged. In Boor v. Lo......