Magnuson v. Billings
| Decision Date | 15 February 1899 |
| Docket Number | 18,874 |
| Citation | 52 N.E. 803,152 Ind. 177 |
| Parties | Magnuson v. Billings |
| Court | Indiana Supreme Court |
From the Noble Circuit Court.
Affirmed.
L. W Welker, for appellant.
F. P Bothwell and Ferrall & Hanan, for appellee.
On the 26th day of January, 1896, appellee filed her complaint against the appellant, praying judgment on a note, and foreclosure of a chattel mortgage executed to secure the same. On the 6th day of January, 1897, appellant filed his answer in five paragraphs. On the 3rd day of March, 1897 appellee filed her reply in general denial, which placed the cause at issue. On the 17th day of May, 1897, the court set the cause for trial on the 25th day of May, 1897, and on the day set, and after the cause was called for trial, appellee moved the court for leave to file "an additional and second paragraph" of reply to the second paragraph of appellant's answer. Appellant resisted the motion upon the ground that the issues were closed, and appellee had not complied with rule five of the court, which required applications to open issues to be supported by the affidavit of the applicant, and upon the further ground that the proposed further reply set up new matter, that would require new and additional evidence, which he was not prepared to present. The motion was sustained, a proper exception awarded appellant, the additional reply filed, cause tried, and resulted in a judgment and decree for appellee. The overruling of appellant's motion for a new trial presents the only question for review here.
The second paragraph of answer charged that the note and mortgage were given for a stallion, cart, and harness, that the defendant was induced to buy the property by the fraudulent representations of the plaintiff; that soon after the defendant discovered the fraud he returned the property to the plaintiff, informing her that it was not as she had represented it to be, "and was worthless, and that he had brought the stallion, cart, and harness back, and the plaintiff directed him to place the stallion in her barn, and the cart and harness in the shed, which the defendant did as requested, and then demanded of the plaintiff a return of his note and mortgage, which she refused."
The additional and second paragraph of reply to the answer stated that the property was purchased by, and delivered to the defendant on the -- of May, 1896, and that the property was then in good condition; that the defendant kept and used said property until the 20th day of July, 1896; that he worked the horse all the time, and negligently failed to feed and care for him so that said horse became very poor and weak, and negligently permitted the collar used on the horse to rub, wear, and create great and painful sores on his neck and shoulders, and failed to treat said sores, and they made ugly scars on the horse to her damage fifty dollars, and did use, wear out and damage said cart and harness twenty dollars, and on the 20th day of July brought said property, in its damaged condition, to the plaintiff's house, and left the same on her premises, without her knowledge or consent, and without notice to her of his intention to rescind the contract, and the plaintiff has never accepted a return of the property, or taken possession of it.
The fifth rule of said court is properly in the record, and is in the words following: The first reason assigned for a new trial is that the court erred in sustaining appellee's motion for leave to file her second paragraph of reply to the second paragraph of answer, without a compliance with the court's rule five.
Courts have power to adopt rules for conducting the business therein not repugnant to the laws of this State (section 1375 Burns 1894, section 1323 Horner 1897), and when adopted and published they have the force and effect of law, and are obligatory upon the court, as well as upon parties to causes pending before it. Section 186, Elliott's Gen. Prac.; Lancaster v. Waukegan, etc., R. Co., 132 Ill. 492, 24 N.E. 629; David v. Aetna...
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