McCoy v. Stockman
| Decision Date | 29 January 1897 |
| Docket Number | 18,072 |
| Citation | 46 N.E. 21,146 Ind. 668 |
| Parties | McCoy et al. v. Stockman et al |
| Court | Indiana Supreme Court |
From the Decatur Circuit Court.
Affirmed.
Ewing & Wallingford and Moore & Miller, for appellants.
Ewing & Wilson, Bennett & Davidson and D. A. Myers, for appellees.
The appellants and a large number of others filed a complaint against appellee, Stockman, as a warehouseman and grain merchant, and others interested, seeking to obtain possession of the wheat he had in store and to make a division thereof among the plaintiffs. It was alleged that the plaintiffs and the defendants, other than Stockman, had deposited 13,000 bushels of wheat with Stockman, and on his financial failure he had only about 5,000 bushels. Nine of the plaintiffs, with the permission of the court, dismissed the cause as to themselves, namely George Bird and others, over the objection and exception of the other plaintiffs.
The dismissing plaintiffs applied to the court to be made defendants, which application was granted. They then joined with the original defendants in a cross-complaint against the remaining original plaintiffs, claiming certain rights in the stored wheat.
The defendants to the cross-complaint entered a special appearance to said cross-complaint and moved to strike it out for the reasons: (1) That the defendants in said cross-complaint are not in court by any process to answer the same; (2) that said cross-complaint involves a commingling of jurisdictions and incongruity of actions; (3) said defendants elected to join the plaintiffs in the original complaint, and allege they were tenants in common with all the plaintiffs in the wheat in controversy.
The court overruled the motion. The original plaintiffs answered said cross-complaint in two paragraphs, and the circuit court sustained a demurrer to the second paragraph thereof. The only errors assigned call in question the rulings above mentioned. The error assigned, that the court erred in rendering final judgment in favor of the cross-complainants if it were even a sufficient assignment of error to present any question of law, it is waived by appellants' counsel in not mentioning it in their brief.
We need not determine whether process was necessary to bring the defendants to the cross-complaint into court, as under their so called special appearance they moved to strike out the cross-complaint, not only for want of process, but for other reasons assigned in such motion.
A motion under a special appearance to quash the notice and set aside the order appointing a receiver was held to be taking a step in the cause, and therefore a full appearance, in Hellebush v. Blake, 119 Ind. 349, 21 N.E. 976.
The other reasons assigned in the motion were such as must be taken advantage of by demurrer or answer, and either a demurrer or answer filed constitutes a full appearance. Knight v. Low, 15 Ind. 374; City of Crawfordsville v. Hays, 42 Ind. 200; Slauter v. Hollowell, 90 Ind. 286; Gilbert v. Hall, 115 Ind. 549, 18 N.E. 28.
A full appearance is equivalent to the service of process and waives all defects therein. City of Crawfordsville v. Hays, supra; Louisville, etc., R. W. Co. v. Nicholson, 60 Ind. 158.
The second and third reasons or grounds of the motion, as before remarked, involved either grounds for a demurrer to the cross-complaint or an answer thereto, if indeed they state any matter the appellants had any right to urge against the cross-complaint, either by way of demurrer or answer. Even though the cross-complaint stated no cause of action against appellants, that circumstance furnished no ground for striking it out. It is well established in this State that it is error to strike out a complaint on the ground that it does not state facts sufficient to constitute a cause of action. Port v. Williams, 6 Ind. 219; State, ex rel., v. Newlin, 69 Ind. 108; Indianapolis Piano Mfg. Co. v. Caven, 53 Ind. 258; Fletcher v. Crist, 139 Ind. 121, 38 N.E. 472.
The reason of the rule is, that if the facts stated are not sufficient to constitute a cause of action the plaintiff has a right to amend his complaint so it will state a cause of action. This he could not do if the pleading was stricken out. The same rule...
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