Ketcham v. Barbour

• Decision Date: 11 February 1885
• Docket Number: 11,880
• Citation: 26 N.E. 127,102 Ind. 576
• Parties: Ketcham v. Barbour, Executor
• Court: Indiana Supreme Court

26 N.E. 127

102 Ind. 576

Ketcham v. Barbour, Executor

No. 11,880

Supreme Court of Indiana

February 11, 1885

Petition for a Rehearing Overruled Nov. 5, 1885.

From the Vigo Superior Court.

The judgment is affirmed, with costs.

W Eggleston and E. Reed, for appellant.

C. W Barbour and A. J. Kelly, for appellee.

OPINION

Howk J.

The first error of which complaint is made by the appellant, the defendant below, is thus assigned upon the record of this cause: "The court erred in overruling the demurrers to the first, second and third paragraphs of the complaint."

It will be observed that this assignment of error does not call in question the rulings of the trial court upon demurrers to each of the paragraphs of the complaint separately; but the error complained of is the overruling of demurrers to the first, second and third paragraphs of complaint. The record does not contain any such demurrers, and, of course, does not show any such ruling as the one complained of here as erroneous. In this court the appellant's assignment of error is his complaint, and it must state, like a complaint in a trial court, the cause or matter complained of with reasonable certainty and precision, and the existence or truth of such cause or matter must, in like manner, be shown by the record. Hutts v. Hutts, 62 Ind. 214; Williams v. Riley, 88 Ind. 290.

If however, it were conceded that the record contained the demurrers, and showed the ruling thereon, mentioned in the first alleged error, it is certain that such error would not present the question of the sufficiency of each paragraph of complaint separately, but only of the three paragraphs, jointly considered. In such a case, if either paragraph of the complaint states a good cause of action, the joint demurrer to all the paragraphs is properly overruled, even though the other paragraphs may be clearly insufficient. This is so, we think, whether the question is presented upon a joint demurrer to all the paragraphs of complaint, or by an assignment of error which is founded solely upon the alleged overruling of such demurrer to all the paragraphs jointly. In this case it is not, and can not be seriously questioned that the third paragraph of appellee's complaint states a good cause of action. It is a complaint upon an itemized account, wherein it is alleged that the appellant "is indebted" to the appellee in a certain sum of money, for the rent, use and occupation of certain land belonging to his decedent. Such a complaint shows a present, matured indebtedness, and is sufficient to withstand a demurrer for the want of facts. Mayes v. Goldsmith, 58 Ind. 94; Heshion v. Julian, 82 Ind. 576. If,...