Harter v. Songer
| Decision Date | 29 May 1894 |
| Docket Number | 16,593 |
| Citation | 37 N.E. 595,138 Ind. 161 |
| Parties | Harter, Administratrix, et al. v. Songer |
| Court | Indiana Supreme Court |
From the Fountain Circuit Court.
The judgment is affirmed.
V. E Livengood and S. F. Wood, for appellants.
H. H Dochterman and D. Simms, for appellee.
This was a suit by the appellee to set aside a final settlement by the appellant, administratrix of the estate of John Wertz deceased.
Motions by the appellants to make more specific and to strike out parts of the complaint were overruled, and a demurrer to the complaint was overruled.
The appellants failing to plead further, the court rendered judgment for the appellee setting aside said settlement.
The appellants complain, in this court, of said several adverse rulings of the lower court.
The complaint alleged the existence of a copartnership, consisting of the said John Wertz, the appellee and one Isley, from February, 1880, until the death of said Wertz, in 1883; that the interests in the copartnership and its liabilities were, Wertz, three-eighths; Songer, one-eighth, and Isley, one-half; that upon the death of said Wertz, and the dissolution of said copartnership, there was an outstanding indebtedness due from the firm in the sum of four thousand dollars; that during the administration of said estate by the appellant Harter, several judgments were rendered against said estate, and the said Songer and Isley, upon said indebtedness aggregating more than three thousand dollars; that all of the assets of the copartnership had been exhausted in paying other indebtedness of the firm; that said Wertz left property, subject to the payment of his liabilities, to the value of ten thousand dollars, and left no indebtedness other than that of said firm; that said administratrix neglected and refused to pay any part of said judgments or to convert real estate of the decedent, necessary for that purpose, into cash, and that to protect his own property from sale, upon execution, to satisfy said judgments, the appellee was required to, and did, pay them in full from his separate means.
It is further alleged that on October 23, 1891, said administratrix, intending to prevent filing of claims against said estate by the appellee for the sums so paid, filed and procured the approval of a final settlement report of the administration of said estate, without any showing that said judgments had been paid, and without paying any part thereof, and that the appellee and said judgment creditors had no actual knowledge or notice of the filing or approval of said report, and was not present in court in person or by attorney.
It is incidentally alleged that he is entitled to subrogation as to the sums so paid on behalf of said estate, but the judgment of the court did not declare subrogation, and did not grant a recovery in any sum.
The allegations sought to be made more specific were as to the ownership, by the decedent, of real and personal property, and that after his death the appellants, his descendants, took, and have since held possession thereof, and that all of the firm assets had been exhausted in paying firm liabilities. The ownership of property, in addition to that which was alleged to have gone into the hands of the administratrix, was but an incident to the right to have the final settlement set aside, since it was the duty of the administratrix to have paid upon the judgments that proportion of the funds coming into her hands, to which such judgments with other claims against the estate were entitled, even if the estate had not been solvent. The action was not to recover from the heirs any of said property, nor was it to subject said property to the payment of the appellee's claims. The decree entered does not preclude the appellants from controverting the facts as to the extent and value of the property received by them severally, and this fact, of itself, shows the little importance of specific allegations as to the extent and value of such property so alleged to have been taken and held by the appellants severally. The allegations sought by the motion, as to the particular debts, amounts, and persons to whom paid, in exhausting the firm property, would, like those with reference to the property taken by the appellants, have been but evidentiary facts, and not necessary to the sufficiency of the complaint to set aside the final settlement. There was no error in overruling said motion.
The motion to strike out parts of the complaint was sustained in part, and overruled in part, and it is urged that it was error to overrule the motion in part. It is rarely available error to overrule a motion to strike out, and it is certainly not reversible error when the alleged irrelevant matter does not, as in this case, supply the basis of the judgment. If the complaint can be said to have contained pertinent facts sufficient to support the judgment, no error can be predicated upon the motion to strike out other and immaterial facts. We come now to a consideration of the sufficiency of the complaint upon the demurrer of the appellants. The grounds of demurrer were four, namely: Want of sufficient facts; nonjoinder as plaintiff of Isley; nonjoinder of Isley as defendant; and misjoinder of causes of action. The last of these grounds is presented upon the theory that the relief sought was not only to set aside the settlement, but to declare the right of subrogation, and for judgment thereon.
It is conceded that under section 341, R. S. 1881 (344, R. S. 1894), the judgment could not be reversed upon this alleged error. In the absence of this provision of the statute, where the judgment adopts the theory of the complaint as presenting but a single cause of action, and does not extend relief upon the supposed erroneously joined facts, it would be difficult to see how the parties could be prejudiced. The judgment before us, it will be remembered, was without an issue joined, and the record presents no question of error in admitting evidence of such supposed second cause of action.
As to the second and third grounds for demurrer, it may be said that the only possible reason for making Isley a party would be upon the conclusion that he was jointly interested in the relief sought by the complaint. If interested in opening the settlement to enforce a...
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