Holzman v. Hibben

• Decision Date: 12 February 1885
• Docket Number: 11,354
• Citation: 100 Ind. 338
• Parties: Holzman et al. v. Hibben et al
• Court: Indiana Supreme Court

100 Ind. 338

Holzman et al. v. Hibben et al

No. 11,354

Supreme Court of Indiana

February 12, 1885

December 17, 1884.

From the Fulton Circuit Court.

J. S Frazer, W. D. Frazer and J. S. Slick, for appellants.

M. L Essick, G. W. Holman, C. Byfield, L. Howland and L. L Norton, for appellees.

OPINION

Franklin C.

Appellees sued appellants on account for goods sold and delivered. A joint demurrer was overruled to the complaint, and appellants each filed a separate general denial. There was a trial by jury, verdict for the plaintiffs, and over a motion for a new trial judgment was rendered upon the verdict.

The errors assigned are, overruling the demurrer to the complaint, rendering judgment against appellants for all the costs of the term, and overruling the motion for a new trial.

The demurrer to the complaint is joint by all the defendants, and only for the cause of the want of sufficient facts stated.

The suit is by the plaintiffs as partners, and against the defendants as partners. The complaint avers that one member of the late firm of plaintiffs, since the commencement of the suit, had died, and by leave of the court the complaint had been amended by the substitution of his widow's name in the place of that of the deceased, averring that deceased had willed all his interest in the partnership accounts to such widow, and that all the partnership debts were paid.

The bill of particulars filed with the complaint, as an exhibit, and made a part thereof, is made out and stands against one of the defendants individually.

Under the demurrer, there are two objections presented to this complaint. The first is that the bill of particulars being only against one of the defendants, no cause of action is shown against the other defendants. The second is that no cause of action is shown in favor of one of the plaintiffs (the wife of the deceased partner). The demurrer, being joint by all the defendants, can not raise the first question presented. If in such case there is any cause of action shown against any one of the defendants, the demurrer must be overruled. In order to be available, in such cases, the demurrer must be separately by the defendants, or by the defendants jointly, against whom no cause of action is shown. The party against whom a cause of action is shown can not demur to the complaint because no cause of action is shown against some other defendant or defendants. There is no error in overruling the demurrer for this cause. See the following recent cases: Rector v. Shirk, 92 Ind. 31; Campbell v. Martin, 87 Ind. 577; Axtel v. Chase, 83 Ind. 546; Carter v. Zenblin, 68 Ind. 436. Many other cases to the same purport might be cited.

As to the second objection, that no cause of action is shown in one of the plaintiffs, the law is equally well settled by numerous decisions of this court, that under a demurrer stating for cause the want of sufficient facts, the defendants may take advantage of want of sufficient facts as to any one of the plaintiffs. The complaint, in order to constitute a good cause of action, must show a joint interest and cause of action in each and all of the plaintiffs. The defendants can not be called upon to answer a complaint that only shows a cause of action in favor of a part of the plaintiffs. The payment of a judgment rendered in such a case would not be a payment to the persons justly entitled to receive the same, and would not be a bar to another suit by the parties who were rightfully entitled to collect the same. Hence the erroneously overruling of a demurrer to the complaint in such cases has invariably been held by this court as a good cause for reversing the judgment. We have found no case in this court in which the judgment for this cause was reversed, only as to the plaintiff in whom no cause of action was shown by the complaint. See the cases of Thomas v. Irwin, 90 Ind. 557; Hyatt v. Cochran, 85 Ind. 231; Headrick v. Brattain, 83 Ind. 188; Martin v. Davis, 82 Ind....