Mills v. Winter
| Decision Date | 02 April 1884 |
| Docket Number | 11,263 |
| Citation | 94 Ind. 329 |
| Parties | Mills et al. v. Winter |
| Court | Indiana Supreme Court |
From the Montgomery Circuit Court.
G. D Hurley, B. Crane and R. B. Green, for appellants.
M Thompson, W. B. Herod, W. H. Thompson and J. F. Harney, for appellee.
The appellee, Martha Winter, sued Louisa Stringer and the appellants, Henry D. Stringer and William Mills, and obtained judgment against the appellants. Said Mills alone assigns as errors the overruling of his demurrer to the complaint, the overruling of his motion for a new trial, and the overruling of his motion in arrest of judgment.
The demurrer stated as causes, defect of parties plaintiffs, in that James Winter was a necessary plaintiff; defect of parties defendants, in that he was a necessary defendant, and want of sufficient facts.
The complaint charged that the defendants, by fraudulent representations and practices stated, induced the plaintiff to exchange her certain real estate in Montgomery county, Indiana, for certain land of the defendant Louisa Stringer in Illinois, a certain sum of money also being received by the plaintiff in the transaction. The prayer was in the alternative, for a rescission or for damages.
The objections urged in argument upon the subject of the sufficiency of the facts stated relate only to the question of the sufficiency of the complaint as a complaint for rescission. The judgment was not for rescission, but was for damages.
As counsel have suggested no infirmity which could be regarded as a defect in a complaint for damages only, we will assume the complaint to be sufficient as a complaint for deceit.
The record does not show the date of the filing of the original complaint. That to which the demurrer was directed was a substituted complaint filed in February, 1883. It showed that at the time of the fraudulent transaction alleged therein, November, 1880, and immediately thereafter, James Winter was the husband of the plaintiff, but unless it must, therefore, be presumed that she was still a married woman, it was not shown that she was such. However this should be regarded, we think that an action brought by a married woman for deceit in the procurement of a transfer by her of her separate property, is an action concerning her separate property within the meaning of the provision of section 254, R. S. 1881, that a married woman may sue alone when the action concerns her separate property. No suggestion of defect of parties defendants has been made in argument.
Of the causes stated in the motion for a new trial but two are relied on here.
The plaintiff introduced evidence to impeach the character for truth of the defendant Henry D. Stringer, who had testified as a witness for the defendants. After the close of the plaintiff's evidence in rebuttal, the record shows the following: "The defendants offered to introduce the following witnesses in support of the character of defendant H. D. Stringer for truth and veracity." Five names of persons are then set out. "The court overruled the offer, to which ruling of the court the defendants, by counsel, at the time excepted."
It is the uniform practice of this court to refuse to set aside rulings of the trial court unless they appear to be erroneous, and, for the purpose of upholding the result reached below, to indulge every reasonable presumption in favor of those rulings.
No objection to what was offered appears to have...
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Louisville, N.A.&C. Ry. Co. v. Miller
...Ind. 235;Benson v. McFadden, 50 Ind. 431;Holten v. Board, 55 Ind. 194;Coffman v. Reeves, 62 Ind. 334;State v. Newlin, 69 Ind. 108;Mills v. Winter, 94 Ind. 329;Railway Co. v. Berkley (at last term) 35 N. E. 3. Dr. Fletcher, an expert witness in surgery and medicine, introduced by appellee, a......
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Ervin v. State ex rel. Walley
...was her separate property, and this court has held correctly that she may sue concerning it alone, without joining her husband. Mills v. Winter, 94 Ind. 329. Another section of the Code, already referred to, goes further than to confer upon her permissive authority to sue in her own name, b......
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The Louisville, New Albany and Chicago Railway Company v. Miller
... ... 431; ... Holten v. Board, etc., 55 Ind. 194; ... Coffman v. Reeves, 62 Ind. 334; State, ... ex rel., v. Newlin, 69 Ind. 108; Mills ... v. Winter, 94 Ind. 329; Louisville, etc., R. W ... Co. v. Berkey, 136 Ind. 591, 36 N.E. 642 ... Doctor ... ...
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Ervin v. The State ex rel. Walley
... ... correctly that she may sue concerning it alone, without ... joining her husband. Mills v. Winter, 94 ... Ind. 329 ... Another ... section of the code already referred to, goes further than to ... confer upon her ... ...