McBurnie v. Seaton

• Court: Indiana Supreme Court
• Writing for the Court: Mitchell, J.
• Citation: McBurnie v. Seaton, 111 Ind. 56, 12 N.E. 101 (Ind. 1887)
• Decision Date: 19 May 1887
• Docket Number: 12,044
• Parties: McBurnie v. Seaton et al

12 N.E. 101

111 Ind. 56

McBurnie v. Seaton et al

No. 12,044

Supreme Court of Indiana

May 19, 1887

From the Crawford Circuit Court.

The judgment is reversed, with costs.

N. R Peckinpaugh and W. T. Zenor, for appellant.

B. P Douglass, J. L. Suddarth and S. M. Stockslager, for appellees.

OPINION

Mitchell, J.

Elizabeth J. McBurnie brought this suit against John Seaton and wife to foreclose a mortgage. It appeared in the complaint that Seaton became indebted to William J. McBurnie, in his lifetime, to the amount of seven hundred and fifty dollars. This indebtedness was secured by four notes, payable to McBurnie, and signed by Seaton. The notes were secured by a real estate mortgage, signed by Seaton and wife.

After the death of McBurnie, which is alleged to have occurred in 1880, the notes and mortgage were regularly set off to his widow, who brought this suit.

The defendants answered that on the 15th day of September, 1878 William J. McBurnie, describing himself as guardian of the minor heirs of William J. Fields, deceased, instituted a foreclosure suit on the identical notes and mortgage, in the Crawford Circuit Court, against Seaton and wife, and that such proceedings were had in that behalf as that, upon issues duly joined, there was a finding and judgment for the defendant. Prayer that the plaintiff be held estopped, as by a former ajudication.

After the overruling of a demurrer to this answer, the plaintiff replied in substance, that the prior action was prosecuted by William J. McBurnie solely in the character of guardian of the minor heirs of William J. Fields; that the defendants in that action answered certain items of indebtedness, amounting to $ 168, owing by William J. McBurnie, in his individual capacity, to John Seaton, and that the court, at the former hearing, did not hear any evidence, or consider or determine any questions, except such as related to the one subject, and that was whether or not William J. McBurnie, as guardian, in his trust capacity, could maintain a suit to recover on the notes and mortgage.

It was averred that the court gave judgment against the plaintiff solely on the ground that he had no right so to maintain the suit, and that the merits of the case were in nowise involved in the pleadings further than the set-off of $ 168, heretofore mentioned, and that they were in nowise considered or determined therein.

This reply was held insufficient, and judgment was given against the plaintiff.

As it appeared upon the face of the answer that William J. McBurnie sued in the character of guardian, it was...