Norris v. Amos

• Decision Date: 14 December 1860
• Citation: 15 Ind. 365
• Parties: Norris v. Amos
• Court: Indiana Supreme Court

15 Ind. 365

Norris v. Amos

Supreme Court of Indiana

December 14, 1860

APPEAL from the Rush Common Pleas.

The judgment is affirmed, with 3 per cent. damages and costs.

L Sexton, for appellant.

G. C Clark and P. A. Hackleman, for appellees.

OPINION

Hanna J.

Amos sued Norris, averring a breach of warranty, &c., of, and fraudulent representations as to, a horse purchased, &c.

Norris answered, in two paragraphs, that he had theretofore, &c., sued Amos for the price of the horse and recovered judgment; that the then defendant had set up fraud and a warranty, &c., in defense, and that this is the same transaction, &c. In the third paragraph he answered, that as to the costs of this suit, &c., he, Norris, had theretofore sued and recovered judgment for the price of the horse, and that said Amos was personally served, &c., and might have set up the cause of action herein as a defense, &c.

Demurrers were sustained to each paragraph of the answer. The record of the former suit was not made a part of the answer, although it was founded thereon, and therefore the ruling was right. 2 R. S., § 78, p. 44.

The defendant then pleaded a general denial, and, upon the trial, offered the record of the former suit in evidence. Upon objection the evidence was rejected. Was the evidence admissible under the general denial? Under the old practice the evidence would have been admissible under the general issue. 1 Greenl. Ev. § 531.

The statute now is, that, "Under a mere denial of any allegation, no evidence shall be introduced which does not tend to negative what the party making the allegation is bound to prove." 2 R. S., § 91, p. 45.

Under the averments in the complaint herein, no proof was necessary as to the former suit, or the estoppel arising out of it. The evidence was not admissible under the general denial, for the purpose of establishing such estoppel. After the return of the verdict, and a motion for a new trial had been overruled, the defendant filed a written motion to tax the costs against the plaintiff, for the reason that the cause of action herein was a counter-claim, arising out of the cause of action in the former suit, and should have been pleaded thereto, &c.

The evidence received, and that offered and rejected by the Court, is in the record. It is insisted that, upon this motion, it was proper for the Court to have considered all that evidence. So far as the record shows, the...