McCloskey v. Davis

• Decision Date: 01 November 1893
• Citation: 8 Ind.App. 190,35 N.E. 187
• Parties: McCLOSKEY v. DAVIS.
• Court: Indiana Appellate Court

8 Ind.App. 190

35 N.E. 187

McCLOSKEY

v.DAVIS.

Appellate Court of Indiana.

Nov. 1, 1893.

Appeal from circuit court, Montgomery county; J. F. Harney, Judge.

Action by Amanda Davis, as administratrix of James Davis, deceased, against Ebenezer P. McCloskey, as administrator of Albert Allen, deceased, on claims against the estate of defendant's intestate. Judgment for plaintiff. Defendant appeals. Affirmed.

Hurley & Clodfelter, for appellant. Brush & Snyder, for appellee.

ROSS, J.

The appellee, Amanda Davis, as administratrix of the estate of James Davis, deceased, filed two notes, secured by chattel mortgage, as claims against the estate of Albert Allen, deceased, of which estate the appellant was acting as the administrator. The claims were not allowed by the administrator, and at the proper time were transferred to the issue docket for trial. The appellee recovered judgment in the court below in the sum of $1,215. The appellant has assigned on this appeal the following reasons for the reversal of said judgment, viz. (1) “the court erred in overruling appellant's motion for a new trial;” and (2) “the court erred in overruling appellant's motion for leave to assume the burden of the issue, and open and close the evidence and argument in the cause.” The second error is not well assigned in this court. If the court below committed an error in its ruling on appellant's application for the open and close, that was cause for a new trial.

The first cause assigned in the motion for a new trial is that the court erred in overruling the appellant's motion for leave to assume the burden of the issues, and open and close the evidence and argument in the case. The record discloses that after the jury had been impaneled, and before the appellee had introduced any evidence, the appellant made the following admission, viz.: “The defendant, for the purpose of obtaining the opening and close of the evidence and argument in this case, admits the execution of the notes sued on, and also admits that $52.20 is a reasonable attorney fee on the first note; $34.35, the amount claimed, is a reasonable attorney fee on the second note,-as set forth in the claim. Upon these admissions, we ask the opening and close of the evidence and argument.” The court overruled the request for the open and close, and the appellant excepted. The appellant insists that, upon making the above admission, he was entitled to the open and close of the evidence and argument; that by the admission the appellee's case in chief was made out, and the burden shifted to appellant. On the other hand, the appellee insists that the right to the open and close is determined from the pleadings alone; that while the appellant had the right, under the statute, (Elliott's Supp. § 391,) to make any defense, except set-off or counterclaim, without a plea, yet he had the right to file an answer, if he so desired. We think it cannot be controverted that, under the above section of the statute, it is not necessary for the administrator of an estate to plead specially any defense, except a set-off or counterclaim. Castetter v. State, 112 Ind. 445, 14 N. E. Rep. 388. When a general denial is pleaded, all defenses may be proven under the issues thus formed, except a set-off or counterclaim. Griffin v. Hodshire, 119 Ind. 235, 21 N. E. Rep. 741.

It remains, therefore, to be determined-First, whether or not it is necessary for an administrator to file an answer of general denial; and, second, whether, having filed no answer at all, he can, on the trial, waive proof of the claim, and thus shift the burden of the issue. Section 391, supra, provides that it shall not be necessary for the administrator to plead any matter by way of defense. The fair interpretation of this language is that the law puts in a general denial for him, under which he may make all defenses except set-off and counterclaim. It further provides that “if the executor or administrator plead any other matter by way of defense, the claimant shall reply thereto.” The effect of this part of the section is to permit the executor or administrator to admit, if they should see fit, the execution of the instrument which is the basis of the claim, and yet plead specially in avoidance.If an administrator undertakes to answer the defenses which are admissible under the general denial, pleading matter in avoidance only, he thereby affirmatively waives the right to make the defenses under the general denial, which the law otherwise puts in for him, and he is confined to the defenses so pleaded. The law does not contemplate that the same issue shall be formed by more than one answer. Hence, it would be folly to say that the sustaining of a demurrer to a pleading setting up a defense of which the party has the benefit under the general denial would be error. In fact, it has been repeatedly held that it is not error to sustain a demurrer to a paragraph of answer setting up a defense which is available under the general denial, also pleaded. Railroad Co. v. Williamson, 3 Ind. App. 190, 29 N. E. Rep. 455; Sluyter v. Insurance Co., 3 Ind. App. 312, 29 N. E. Rep. 608; Wickwire v. Town of Angola, 4 Ind. App. 253, 30 N. E. Rep. 917; Kidwell v. Kidwell, 84 Ind. 224;Epperson v. Hostetter, 95 Ind. 583;Mason v. Mason, 102 Ind. 38, 26 N. E. Rep. 124; Ralston v. Moore, 105 Ind. 243, 4 N. E. Rep. 673; Landwerlen v. Wheeler, 106 Ind. 523, 5 N. E. Rep. 888; Rush v. Thompson, 112 Ind. 158, 13 N. E. Rep. 665; Railway Co. v. Smith, 127 Ind. 461, 26 N. E. Rep. 1009; Messick v. Railway Co., 128 Ind. 81, 27 N. E. Rep. 419; Baltes v. Machine Works, 129 Ind. 185, 28 N. E. Rep. 319; Pattison v. Babcock, 130 Ind. 474, 30 N. E. Rep. 217; Butler v. Thornburg, 131 Ind. 237, 30 N. E. Rep. 1073; Palmerton v. Hoop, 131 Ind. 23, 30 N. E. Rep. 874. True, in a certain class of cases, namely, in actions to quiet title and in ejectment, all defenses are admissible under the general denial. Brown v. Fodder, 81 Ind. 491;West v. West, 89 Ind. 529;Eve v. Louis, 91 Ind. 457;East v. Peden, 108 Ind. 92, 8 N. E. Rep. 722; section 1055, Rev. St. 1881. The defendant, in addition to an answer of general denial, may plead his defenses specially. Over v. Shannon, 75 Ind. 352; Eve v. Louis, supra. But it is not error to sustain a demurrer to such special answers, even if they state a good defense, because they are useless, the party having advantage of the same defenses under the general denial. West v. West, supra; Ratliff v. Stretch, 117 Ind. 526, 20 N. E. Rep. 438. The rule is different, however, when no general denial is filed, in which event the sustaining of a demurrer to an answer stating a good defense would be error. The law puts in the general denial for an estate when a claim is transferred to the issue docket for trial, under which the administrator or executor may prove all defenses except set-off and counterclaim. But they are not precluded from waiving the benefit of the denial so put in by the law, and filing special answers in confession and avoidance only. By setting up affirmatively the defenses which are admissible under the general denial, without pleading the general denial, they waive the benefit of the answer which otherwise the law assumes to put in for them. The right to the open and close is usually determined from the issues formed by the pleadings. When the answers filed all allege affirmative matter, and admit so much of the complaint as relieves the plaintiff from making any proof to entitle him to recover, the burden shifts to the defendant; and he has the open and close, unless the plaintiff, by reply, admits the defense pleaded, and avoids it by affirmative matter, when the burden would again shift to the plaintiff to prove the matter in avoidance set up in the reply. French v. Howard, 10 Ind. 339. The party upon whom rests the burthen of the issue is entitled to the open and close. Rev. St. 1881, § 533; Donahoe v. Rich, 2 Ind. App. 540, 28 N. E. Rep. 1001; Stames v. Schofield, 5 Ind. App. 4, 31 N. E. Rep. 480; Kimble v. Adair, 2 Blackf. 320;Downey v. Day, 4 Ind. 531;Moore v. Allen, 5 Ind. 521;Shank v. Fleming, 9 Ind. 189;McLees v. Felt, 11 Ind. 218;Judah v. Trustees, 23 Ind. 272;Goodrich v. Friedersdorff, 27 Ind. 308;Fetters v. Bank, 34 Ind. 251;Hamlyn v. Nesbit, 37 Ind. 284;Camp v. Brown, 48 Ind. 575;Board v. Gray, 54 Ind. 91;Heilman v. Shanklin, 60 Ind. 424;Hyatt v. Clements, 65 Ind. 12;Bannister v. Jett, 83 Ind. 129;Reynolds v. Baldwin, 93 Ind. 57;Rahm v. Deig, 121 Ind. 283, 23 N. E. Rep. 141. If the appellant had filed an answer in avoidance, only, the appellee would not have been required to adduce any evidence to entitle her to recover; and the issue would have shifted, and the burden rested upon the appellant. Not having filed any answer, but resting upon the issues formed by the answer of general denial which the law put in for him, could he afterwards waive the issues thus formed, and admit the truth of appellee's complaint, and take upon himself the burden of the issue? We can see no reason why he may not do so. When he admits, either by his pleadings, or admissions made before the introduction of evidence by the appellee, that the material allegations of the complaint are true, thus obviating the making of any proof to sustain the complaint, he takes upon himself the burden of the issue, and is entitled to the open and close. City of Aurora v. Cobb, 21 Ind. 492.

The admission, however, must be sufficient to obviate the introduction of any evidence whatever by the plaintiff. Stames v. Schofield, 5 Ind. App. 4, 31 N. E. Rep. 480. Was the admission by the appellant sufficient? The appellant admitted the execution of the notes sued on, which was sufficient to entitle the appellee to recover the principal and interest due thereon. The notes, however, provided for reasonable attorney's fees, which the claim or complaint stated as $52.20 on the one note, and $34.35 on the other, which amounts were admitted to be...