Johnson v. Tyler
| Decision Date | 13 May 1891 |
| Docket Number | 175 |
| Citation | 27 N.E. 643,1 Ind.App. 387 |
| Parties | JOHNSON ET AL. v. TYLER ET AL |
| Court | Indiana Appellate Court |
From the Warren Circuit Court.
Case reversed.
J McCabe and E. F. McCabe, for appellants.
J. W Sutton, for appellees.
The appellants were the plaintiffs below, and commenced this action against the appellee Hiram B. Tyler, on an account which had been assigned to them by the appellee George C Tyler, who was made a party defendant to answer as to any interest he may have had in said account.
The appellee Hiram B. Tyler answered in two paragraphs: First. General denial. Second. Set-off.
The appellants demurred to the second paragraph of appellee's answer, which was overruled, and excepted to. Appellants then replied by general denial.
The cause was tried by a jury, resulting in a verdict and judgment for the appellee. Appellants made a motion for a new trial which was overruled, and excepted to.
The errors assigned call in question the rulings on the demurrer and the motion for a new trial.
The appellants contend that the court erred in overruling the demurrer to the second paragraph of the appellee's answer. This answer was a cross-action in the nature of a set-off, alleging that before the commencement of this suit, and before the assignment of the account sued on, the assignor, George C. Tyler, was indebted to the appellee in the sum of $ 2,315.10, paid out for the use and benefit of said George C. Tyler, all at his special instance and request, a bill of particulars of which was filed with the answer, marked "Exhibit A," and made part thereof. Wherefore said defendant offers to set off said sum herein, and for all proper relief. These were all the allegations contained therein. There was no allegation directly or indirectly that the demand set up was due and unpaid, and there was no averments therein from which such fact could be inferred. As has frequently been held by the Supreme Court, a set-off, strictly speaking, is not a defence in the action in which it is filed, but is a cross-action and must contain all the substantial averments necessary to make a good complaint, and must, as to its sufficiency, be considered in the nature of a complaint. The set-off, as here plead, was insufficient, and was, as such, materially defective, and the demurrer to it ought to have been sustained. Goodman v. Gordon, 87 Ind. 126; Huston v. Vail, 84 Ind. 262; Kennedy v. Richardson, 70 Ind. 524; Boil v. Simms, 60 Ind. 162; Curran v. Curran, 40 Ind. 473.
Among the causes assigned in the motion for a new trial was the following, to wit: Misconduct of the jury, in this, that one of the jurors, Charles Pitcher, served as a juror in the case of Hamilton vs. Tyler et al., in which the same issue was tried and the same evidence was heard as in this case, but notwithstanding said juror answered, when being examined as to his competency as a juror, that he had not formed or expressed any opinion on the merits of this case, and did not at any time during the progress of the trial announce to the court or the parties that he had been a juror in said former trial; that said plaintiffs and their counsel were wholly ignorant of the fact that said Pitcher had been a juror on said former trial, and did not learn the same until after said verdict was returned, which is shown by the affidavits filed marked exhibits A, B, C, and D.
This cause of the motion for a new trial is supported by the affidavit of Edwin F. McCabe, attorney for the appellants, and by the affidavits of George W. Johnson, Miles Stany and William L. Hamilton, the appellants.
Mr. McCabe states in his affidavit that he was the sole counsel in said cause; that J. McCabe, his partner, who appears of record as counsel, was not present at said trial nor at the trial hereinafter mentioned; that on the trial of the above named cause, Charles Pitcher was called to sit on the jury, and on being examined as to his competency as a juror in said cause, answered that he had not formed or expressed any opinion relating to the merits of said cause and knew nothing about the case, though the nature of the case was fully stated to him at the time, and affiant says said Charles Pitcher had been a juror on the trial of a cause between one William L. Hamilton and said Hiram Tyler wherein the main question involved was whether the deed of said George C. Tyler and wife to said Hiram Tyler was intended as a mortgage or an absolute and unconditional conveyance of the land described therein, and said Pitcher had formed and expressed his opinion on said question and had heard all the evidence on said question which was introduced upon the trial of the above entitled cause, of all of which affiant was wholly ignorant and unaware until long after said trial was completed, to wit, on January 17, 1889.
The appellants, in their affidavits, corroborate the statements in the affidavit of Mr. McCabe, and say that on the trial of the cause between William L. Hamilton and said Hiram Tyler in ...
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