Reynolds v. Baldwin

• Decision Date: 24 January 1884
• Docket Number: 10,110
• Citation: 93 Ind. 57
• Parties: Reynolds et al. v. Baldwin et al
• Court: Indiana Supreme Court

93 Ind. 57

Reynolds et al. v. Baldwin et al

No. 10,110

Supreme Court of Indiana

January 24, 1884

From the White Circuit Court.

A. W Reynolds and E. B. Sellers, for appellants.

D. P Baldwin, for appellees.

OPINION

Black C.

The appellees Baldwin and Spencer sued the appellants and John G Reynolds upon their joint and several promissory note. A return of not found as to the defendant John G. Reynolds was suggested on the record. The other defendants answered in one paragraph, wherein they denied that they executed the note sued on, and alleged that it was executed without any consideration. The plaintiffs replied by a general denial.

The cause was submitted for trial before a jury. The plaintiffs introduced two witnesses, who testified that the services of an attorney in collecting the note sued on were worth $ 25. The plaintiffs then rested, and evidence was introduced by the appellants, at the close of which the appellees demurred to the evidence. All the evidence, including that given on behalf of the appellees, as above stated, was set out in the demurrer. The appellants joined in the demurrer, and the jury was discharged, the appellants and the appellees agreeing that if the demurrer should be sustained, the court might assess the damages. The demurrer was sustained, and the court assessed the amount of the recovery at $ 392.01. The appellants thereupon moved in arrest of judgment. This motion having been overruled, judgment was rendered for the appellees in the amount above stated.

The appellants have assigned as errors the overruling of the motion in arrest, and the sustaining of the demurrer to the evidence.

The only specific objection made to the complaint is that it did not allege a promise to pay.

The complaint alleged that on, etc., "the defendants made, executed and delivered to these plaintiffs, partners under the name and style of Baldwin & Spencer, their certain promissory note, a copy of which is as follows:" There is then set out the copy of a negotiable promissory note for $ 321, with attorney's fees and interest at eight per cent. per annum until paid, payable to the order of "Baldwin & Spencer," and signed by the defendants.

Thereafter it was alleged that said note "is past due and wholly unpaid; there is due them $ 350; a reasonable attorney's fee to collect the same is $ 25;" and judgment for $ 375 was demanded.

This complaint would have been sufficient on demurrer. It was not necessary to allege, in addition to what was averred, that the defendants promised to pay. It was necessary to allege the facts constituting the cause of action, and to set forth a copy of the note; all this was sufficiently done.

The answer was not verified. Under the pleadings the entire burden of proof would have been upon the appellants, but for the controversy involved as to the amount of the attorney's fee. French v. Howard, 10 Ind. 339.

Allegations of value or amount of damages in pleadings are not to be considered as true by the failure to controvert them. Section 383, R. S. 1881; section 74, Code 1852. And in many cases involving the question of the right to open and close, it has been held by this court that in such an action as this the plaintiff would have the burden of proving the allegation of the complaint in relation to the amount of a reasonable attorney's fee, and would, therefore, be entitled to the open and close. Fetters v. Muncie Nat'l Bank, 34 Ind. 251 (7 Am. R. 225); Camp v. Brown, 48 Ind. 575; Hyatt v. Clements, 65 Ind. 12.

Where one paragraph of a complaint, consisting of two paragraphs, is answered by affirmative matter in avoidance only, and the other is denied, the burden is upon the plaintiff, and he has the right to open and close the evidence; but if he introduce no evidence in support of the paragraph denied, the defendant will be entitled to open and close the argument. Zehner v. Kepler, 16 Ind. 290; Williams v. Allen, 40 Ind. 295.

Where a party demurs to the evidence, no evidence introduced by him can be considered upon the demurrer. He assumes the position which he occupies under the pleadings, without any evidence in his behalf, and if, under the pleadings, the burden of any issue rests upon him, that issue can not be determined in his favor upon the demurrer. For the purposes of the decision of the demurrer he abandons all claim upon that issue. And as to an issue of which he has not the burden, he can not, by his demurrer, cause his own evidence to be taken as true or to be considered, and an attempt on his part to thus withdraw from the jury and submit to the court the decision of a disputed question of fact would be good ground for the refusal of the adverse party to join in the demurrer, or for the court to set aside the demurrer as irregular and incorrect in principle. Fritz v. Clark, 80 Ind. 591; Plant v. Edwards, 85 Ind. 588, and cases there cited.

In the demurrer before us, as stated above, the evidence of both parties was set out. The evidence introduced by the demurrants related solely to the question as to the amount of the attorney's fee, and no evidence upon this question was introduced by the appellants. It was, perhaps, intended by the appellants to prove by their evidence a want of consideration, but the evidence had no such tendency. There can be no doubt that the demurrer was properly sustained unless it be because of the presence...