Horman v. Hartmetz

• Citation: 128 Ind. 353,27 N.E. 731
• Parties: Horman et al. v. Hartmetz.
• Decision Date: 23 May 1891
• Court: Supreme Court of Indiana

128 Ind. 353

27 N.E. 731

Horman et al.

v.Hartmetz.

Supreme Court of Indiana.

May 23, 1891.

Appeal from superior court, Vanderburgh county; O. M. Welborn, Special Judge.

C. B. Harris and J. T. Walker, for appellants. S. R. Hornbrook, for appellee.

Elliott, J.

A demurrer was sustained to the third paragraph of the appellants' complaint, and upon this ruling is based one of the specifications of error. But, as the appellants subsequently filed additional paragraphs, alleging substantially the same facts as a those pleaded in the paragraph held bad, and requiring no more evidence to support them, the error, if it was one, was harmless. Where a demurrer is sustained to one paragraph of a complaint, and additional paragraphs are subsequently filed, alleging substantially the same facts and requiring no more evidence than the one held bad, the ruling on the demurrer is not available. Hunter v. Pfeiffer, 108 Ind. 197, 9 N. E. Rep. 124, and cases cited. We do not mean to trench upon the long-established rule that a plaintiff may state his cause of action in different forms, nor do we do so, for we hold that where there is an amendment the amended pleading is superseded, and that where the paragraphs which remain entitle the plaintiff to give the same evidence as that admissible under the paragraph adjudged bad, and require no greater evidence, an erroneous ruling on the demurrer is not a prejudicial error. Long v. Williams, 74 Ind. 115;City of Elkhart v. Wick wire, 87 Ind. 77. Where, however, a paragraph of a complaint is erroneously adjudged insufficient, and others are held good, the error is not harmless if the paragraphs allowed to stand are substantially different from that held bad, or if those held good impose upon the plaintiff the burden of adducing stronger or greater evidence than would be necessary under the paragraph condemned. If, in other words, the effect of the ruling on demurrer is to make it necessary to introduce more or greater evidence, or to exclude competent evidence, the error may be prejudicial; but it is otherwise where the ruling on demurrer does not have the effect either to abridge the right of the plaintiff or to increase his burden. The decision in Summers v. Tarney, 123 Ind. 560, 24 N. E. Rep. 678, does not, when justly interpreted, declare any doctrine opposed to our conclusion, for all that is there decided is that where two paragraphs of a complaint allege the same facts it is not prejudicial error to overrule a demurrer to one of them. That case cannot, however, be construed as asserting that a defendant would not be prejudiced if a bad paragraph was held good where such a ruling would enable the plaintiff to recover upon insufficent evidence. The principle involved in such a case is the same as that involved in such cases as Messick v. Railway Co., ante, 419, (this term,) and Over v. Shannon, 75 Ind. 352. In a case where a demurrer to one paragraph is overruled, and there is another paragraph stating the same facts as the paragraph assailed, but stating additional facts, it would be prejudicial error to hold the assailed paragraph sufficient if in fact it is bad on demurrer. If, to somewhat vary the statement, a complaint contains two paragraphs, and one of them states only a part of the facts essential to a recovery, and the other states the same facts, but also states the other facts essential to a cause of action, it would not be a harmless error to overrule a demurrer to the paragraph stating part only of the facts essential to the existence of a right of action. Of course, other parts of the record might show a ruling in such a case to be harmless; but, unless other parts of the record should show this, the error could not be regarded as a harmless one. Many cases affirm this doctrine, but we do not deem it necessary to cite them.

The facts as they appear in the special finding are, in substance, these: The plaintiffs (here the appellants) are husband and wife, and have been since the year 1875. Prior to August 22, 1885, Hiram E. Read owned the real estate involved in the controversy, and on that day he conveyed it to the plaintiffs jointly. About the time of the purchase of the real estate the husband contracted for the erection of a dwellinghouse thereon, for which he agreed to pay, and did pay, $600. In November, 1884, the plaintiffs executed a mortgage to August Matt, and obtained from him $350, which was used in paying for the house erected on the land of the plaintiffs. On the 26th day of February, 1885, the plaintiffs executed to the Franklin Building Association a mortgage to secure a loan of $390, and they represented to the officers of the association that the money was to be used in discharging liens upon the property and for improving it. On these representations the association relied. Of the money borrowed from the association the sum of $355 was used to pay the mortgage executed to August Matt; the sum of $10 was used to pay expenses incurred in securing the loan, and there is no evidence as to the use made of the residue. On the 6th day of August, 1885, the plaintiffs conveyed the property to Herman Thole without consideration, and on the same day obtained from the building association another loan, and executed a mortgage for $130. The association knew that the money obtained was to be used by the husband in his own business, and the money was so...