Minnich v. Packard

• Decision Date: 14 October 1908
• Docket Number: No. 6,208.,6,208.
• Citation: 85 N.E. 787,42 Ind.App. 371
• Parties: MINNICH v. PACKARD.
• Court: Indiana Appellate Court

42 Ind.App. 371

85 N.E. 787

MINNICH

v.PACKARD.

No. 6,208.

Appellate Court of Indiana, Division No. 1.

Oct. 14, 1908.

Appeal from Circuit Court, Huntington County; James C. Branyan, Judge.

Action by John Minnich against Mark Packard. Judgment for defendant, and plaintiff appeals. Affirmed.

James M. Hatfield, for appellant. Kenner, Lucas & Kenner, for appellee.

WATSON, J.

To the complaint in this cause appellee appeared specially and filed an answer in abatement, denying the jurisdiction of the court, alleging that he was a resident of the city of Buffalo, state of New York; that he came to Huntington, Ind., for the sole purpose of prosecuting an action in replevin, brought by himself against said appellant in the Huntington circuit court, and to testify in his own behalf in said cause; that his presence was necessary on the trial of said cause; that during the progress of said trial, and while he was in the courtroom, appellant filed his complaint in this cause and caused summons to be issued and served on appellee; that the answer in said first cause, wherein appellee was plaintiff and appellant was defendant, was so drawn that it would require appellee to attend the trial thereof. Issues were joined thereon, and the cause submitted to a jury. The jury, with their general verdict, returned answers to interrogatories submitted to them. The errors assigned were: (1) Overruling the demurrer to appellee's answer in abatement; (2) overruling appellant's motion for judgment on the answers to interrogatories notwithstanding the general verdict; (3) overruling appellant's motion for a new trial.

To appellee's plea in abatement appellant filed his demurrer, which, omitting the caption, is as follows: “Plaintiff demurs to defendant's answer of abatement on the ground that said answer does not state facts sufficient to constitute a cause why plaintiff should not be allowed to prosecute this action in this court.” It is insisted that the demurrer is not in proper form, and therefore presents no question as to the sufficiency of the answer. Burns' Ann. St. 1901, § 349 (Burns' Ann. St. 1908, § 351), provides: “Where the facts stated in any paragraph of the answer are not sufficient to constitute a cause of defense, the plaintiff may demur to it under the rules prescribed for demurring to a complaint.” In Reed v. Higgins, 86 Ind. 143, the demurrer was: “The plaintiffs separately and severally demur to the second, third, and fourth paragraphs of defendant's answer herein, and for ground of demurrer say that neither of said paragraphs constitutes any defense to this action.” Held, the demurrer was insufficient. In Thomas v. Goodwine, 88 Ind. 458, the demurrer to the first paragraph of the answer was for the following cause: “Because said defendant's answer does not state facts sufficient to constitute an answer to plaintiff's complaint.” Held insufficient. In Wintrode v. Renbarger, 150 Ind. 556, 50 N. E. 570, the demurrer was for the reason that facts were not stated “sufficient to constitute a good answer to the complaint of the plaintiff.” The demurrer was held bad. A demurrer to a plea in abatement is required to be in the form prescribed by statute, the same as when addressed to any other answer. Bryan v. Scholl, 109 Ind. 367, 10 N. E. 107. The demurrer in this case does not present any of the six causes of demurrer enumerated in the Code, and therefore is insufficient. City, etc., v. Bielefeld, 20 Ind. App. 1, 49 N. E. 1090;Flanagan v. Reitemier, 26 Ind. App. 243, 248, 59 N. E. 389;Oglebay v. Tippecanoe Loan, etc., Co. (Ind. App.) 82 N. E. 494;State v. Katzman, 161 Ind. 504, 506, 69 N. E. 157. The court, therefore, committed no error in overruling the appellant's demurrer to the answer in this cause.

The motion for a new trial is asked on the ground that the verdict is contrary to law and not sustained by sufficient evidence; also error is predicated on the giving instructions Nos. 1 and 2 requested by appellee. At the last analysis the vital question for our determination is whether a person attending the trial of a cause where he was an interested party, in a jurisdiction other than that of his residence, is privileged from the service of a summons during the necessary time required in going to, while attending, and returning from, the trial of said cause. This question vitally concerns the free and unhampered administration of the courts of the land. That suitors as well as witnesses...