Robbins v. Masteller

• Decision Date: 25 February 1897
• Docket Number: 18,053
• Citation: 46 N.E. 330,147 Ind. 122
• Parties: Robbins v. Masteller et al
• Court: Indiana Supreme Court

46 N.E. 330

147 Ind. 122

Robbins v. Masteller et al

No. 18,053

Supreme Court of Indiana

February 25, 1897

From the Fulton Circuit Court.

Affirmed.

Conner & Rowley, for appellant.

G. W Holman, R. C. Stephenson and P. M. Buchanan, for appellees.

OPINION

Jordan, C. J.

This action was originally commenced by appellant to recover upon a certain promissory note, executed by Clarence B. Masteller to Herbert D. Masteller, for the sum of $ 300.00, and by the said payee indorsed to appellant. Issues were joined upon the original complaint, but, subsequently, during the trial of the cause, the submission thereof was set aside, and the court permitted appellant to file an amended complaint making appellee, Ruhama Masteller, a party defendant. By this amended complaint he sought to recover upon the note in question, and to enforce a vendor's lien upon the real estate described in the amended complaint.

Appellee Clarence B. Masteller, filed an answer to the amended complaint, in two paragraphs. This, appellee and his co-appellee, Ruhama Masteller also answered jointly in three paragraphs, and Ruhama also filed a separate answer in one paragraph. Under the issues joined upon the amended complaint, appellant recovered upon his note only, his right to a vendor's lien being denied by the court, and judgment was also rendered in favor of Ruhama Masteller against appellant for cost.

Appellant, by his assignment of errors seeks to call in question the overruling of his demurrer to the answers of appellees, and the action of the court in denying his motion for a new trial. The assignment of errors on the court's ruling upon the demurrer to the answer is as follows:

3. "The court erred in overruling appellant's several demurrers to the second and third paragraphs of answer of appellees."

5. "The court erred in overruling appellant's demurrers to second, third, and fourth paragraphs of appellees' answer."

These assignments, apparently, are intended to apply to the court's ruling upon the demurrer to appellee's joint answer. The record, however, does not disclose that any joint answer was filed by appellees containing paragraphs two, three, and four, hence, in view of the fact that no such answer appears in the record, there seems to be no foundation upon which the assignment can rest. Again, demurrers were overruled to an answer filed by the appellees to the original complaint, which answer was subsequently superseded by those filed to the amended complaint, therefore, the assignment is too indefinite, as it fails to apprise us of the particular answer intended, and we are left to conjecture to which one it refers. The assignments are therefore insufficient, and present no question for review. Bolin v. Simmons, 81 Ind. 92; Elliott's App. Proced., sections 299 and 316; Davenport Mills Co. v. Chambers, 146 Ind. 156, 44 N.E. 1109.

It is next urged that, under the evidence, the judgment denying appellant a vendor's lien upon the note in suit is wrong. We are of the opinion...