Merritt v. Richey

• Decision Date: 14 February 1885
• Docket Number: 11,916
• Citation: 100 Ind. 416
• Parties: Merritt v. Richey
• Court: Indiana Supreme Court

100 Ind. 416

Merritt v. Richey

No. 11,916

Supreme Court of Indiana

February 14, 1885

From the Clinton Circuit Court.

The judgment is reversed with costs, and the cause is remanded with instructions to overrule the demurrers to the amended answer and the cross complaint, and for further proceedings not inconsistent with this opinion.

J. V Kent and J. W. Merritt, for appellant.

J. N Sims, for appellee.

OPINION

Howk J.

This was a suit by the appellee Richey against the appellant Merritt, to recover the possession of certain real estate in Clinton county, and damages for having been kept out of the possession thereof. The cause was put at issue and tried by the court, and a finding was made for the appellee, and judgment was rendered accordingly; and from this judgment this appeal is prosecuted.

The first error of which complaint is made, in argument, is the decision of the court in sustaining appellee's demurrer to the appellant's amended answer.

This action appears from the record to have been commenced in the trial court, on the 20th day of September, 1883. The amended answer was pleaded by the appellant in abatement of this action, on the ground that a prior suit, commenced in the same court on the 6th day of May, 1881, between the same parties, and involving, as does this action, the appellee's title to and right to the possession of the land in controversy, was then pending and undetermined on appeal in the Supreme Court. This amended answer was duly verified by the oath of the appellant, and therein he prayed that the present action abate and be held in abeyance until the appeal in the former suit was determined by this court. The answer was very full in its averments, and was very long. Without attempting to summarize the answer, it will suffice for us to say that sufficient facts were stated therein, we think, to withstand the appellee's demurrer, and to entitle the appellant to the relief prayed for. It clearly appeared from the facts stated in the answer, and admitted to be true by appellee's demurrer, that this action ought not to have been prosecuted to final judgment, until the appeal in the former suit had been determined. We conclude, therefore, that the court erred in sustaining the demurrer to appellant's answer. Loyd v. Reynolds, 29 Ind. 299; Dawson v. Vaughan, 42 Ind. 395; Moore v. Kessler, 59 Ind. 152.

Another error complained of, in argument, by the appellant's coun...