Moore v. Morris

• Decision Date: 29 October 1895
• Docket Number: 17,507
• Citation: 41 N.E. 796,142 Ind. 354
• Parties: Moore et al. v. Morris
• Court: Indiana Supreme Court

41 N.E. 796

142 Ind. 354

Moore et al. v. Morris

No. 17,507

Supreme Court of Indiana

October 29, 1895

From the Hamilton Circuit Court.

The judgment is affirmed.

S. E Urmston and H. Warrum, for appellants.

Fertig & Alexander and Harding & Hovey, for appellee.

OPINION

Howard, C. J.

The original paragraph of the complaint in this case alleged facts going to show fraud on the part of appellants and their agents in the procurement from appellee of deeds for certain lands in Hamilton county, during a time, as alleged, when appellee was of unsound mind and incapable of transacting business; praying that the deeds be set aside, and for possession and damages.

A second paragraph of complaint was afterwards filed, not alleging unsoundness of mind, but setting up the fraud in a more particular manner; asking for damages and to have a vendor's lien on the land declared in appellee's favor.

Other pleadings were filed, and there was a finding by the court and judgment for damages in favor of appellee. A vendor's lien was also awarded for any balance of the judgment left after execution against the personal estate of the appellant Robert E. Moore.

The first assigned error discussed by counsel is that the court erred in sustaining the appellee's demurrer to the appellants' plea in abatement to the second paragraph of the complaint.

In Needham v. Wright, 140 Ind. 190, 39 N.E 510, it was said, citing numerous authorities, that in pleas in abatement and other dilatory pleas the utmost fullness and particularity of statement, as well as the highest attainable accuracy and precision, are required. The pleader must not only answer fully what is necessary to be answered, but must also anticipate and exclude all such supposable matter as would, if alleged on the opposite side, defeat his plea.

Tried by this rule, the plea in abatement filed by appellants was insufficient for many reasons. It will be enough to indicate one of them. The plea was based chiefly on the claim that the appellants were residents of Marion county, and could not therefore, be sued on a merely personal action in Hamilton county. We do not think the action as stated in the second paragraph of the complaint was merely personal; but, even if it were, the averment that "the said defendants are residents of Marion county, Indiana, and are not residents of Hamilton county," would not be sufficient. For all that appears from this or any...