Kern v. Saul

• Decision Date: 17 December 1895
• Citation: 42 N.E. 496,14 Ind.App. 72
• Parties: KERN v. SAUL.
• Court: Indiana Appellate Court

14 Ind.App. 72

42 N.E. 496

KERN

v.SAUL.

Appellate Court of Indiana.

Dec. 17, 1895.

Appeal from circuit court, Howard county; L. J. Kirkpatrick, Judge.

Action by Pharon J. Kern against William Saul on a note. From a judgment for defendant, plaintiff appeals. Reversed.

Moon & Wolf, for appellant. Blacklidge & Shirley, for appellee.

DAVIS, J.

The foundation of this action is a promissory note executed by the appellee to the appellant. The appellee answered in four paragraphs: (1) General denial; (2) payment; (3) failure of consideration. The fourth is substantially the same as the third. To the second paragraph the appellant replied, and demurred to the third and fourth paragraphs. The demurrer was overruled to each paragraph. The appellant elected to stand on such rulings, and declined to plead further. Final judgment was thereupon rendered against appellant,-that he should take nothing by his complaint, and that appellee recover his costs.

The errors assigned are that the court erred in overruling the demurrer to each paragraph of the answer. On the failure of appellant to controvert the material allegations of the third and fourth paragraphs of the answer by reply, the court was required by the statute to take the same as true for the purpose of the action. Rev. St. 1894, § 386 (Rev. St. 1881, § 383); Adams v. Tuley, 1 Ind. App. 490, 27 N. E. 991. The appellant, by a reply of general denial, controverted the answer of payment. On the failure of appellant to reply to the third and fourth paragraphs of answer after the several demurrers thereto were overruled the court was required by the statute to render final judgment against him, as upon a default. Rev. St. 1894, § 348 (Rev. St. 1881, § 345). The judgment that appellant should take nothing by his complaint, and that appellee should recover his costs, was an ultimate determination of the court upon the whole controversy in the action. City of Jeffersonville v. Tomlin, 7 Ind. App. 681, 35 N. E. 29. It is error to overrule a demurrer to an insufficient paragraph of answer, unless it affirmatively appears that the ruling was harmless. Norris v. Tice (Ind. App.) 39 N. E. 1046. The confession, for the purpose of the action, that the facts alleged in the third and fourth paragraphs of the answer are true, necessarily defeats the action, if either paragraph is sufficient to constitute a defense. Adams v. Tuley, supra. The answer of payment has not been confessed, but the defense of failure of consideration, if sufficient, has been confessed, and the admission of the truth of the facts alleged in one good paragraph of answer necessarily defeats the action. Breider v. Krueger, 92 Ind. 142. From the judgment rendered against appellant, he had a right to appeal. Rev. St. 1894, § 644 (Rev. St. 1881, § 632). The third and fourth paragraphs of the answer are substantially the same, and they stand or fall together. The question for our consideration, therefore, is whether either of said paragraphs states facts sufficient to constitute a defense to the cause of action. In other words, if the final judgment in the court below was rendered against the appellant on the demurrers to bad paragraphs of answer, the judgment should be reversed. Norris v. Tice, supra. It is true, there has been no disposition of the issue made by the reply to the answer of payment; but, in view of the conclusion of the trial court that the facts alleged in the third and fourth paragraphs of the answer constituted a complete bar to the action, the entire controversy was determined without reference to this issue. If there was a failure of consideration, there could be no recovery on the note, and the issue of payment was immaterial. In Clearwater v. Meredith, 1 Wall. 25, on page 43, the court says: “If the plea was true, being a complete defense, it...