Sch. City of Noblesville v. Keinzmann

• Citation: 41 N.E. 464,13 Ind.App. 195
• Parties: SCHOOL CITY OF NOBLESVILLE v. KEINZMANN et al.
• Decision Date: 26 September 1895
• Court: Court of Appeals of Indiana

13 Ind.App. 195

41 N.E. 464

SCHOOL CITY OF NOBLESVILLE

v.KEINZMANN et al.

Appellate Court of Indiana.

Sept. 26, 1895.

Appeal from circuit court, Tipton county; L. J. Kirkpatrick, Judge.

Action by George W. Keinzmann and others against the school city of Noblesville to recover a balance alleged to be due on a building contract. From a judgment for plaintiffs, defendant appeals. Affirmed.

Shirts & Kilbourne, for appellant. Blacklidge, Shirley & Moon and Beauchamp & Mount, for appellees.

ROSS, J.

The appellees sued and recovered judgment against the appellant for a balance alleged to be due them upon a contract for the building of a schoolhouse in the city of Noblesville, Ind. Two specifications of error have been assigned by appellant, as follows: (1) “The court below erred in overruling the motion for a new trial.” (2) “The court erred in overruling the demurrer to the second paragraph of the answer to appellant's cross complaint.” These specifications of error will be taken up and considered in the inverse order of their assignment. The cross complaint filed by appellant declared upon a bond given pursuant to the terms of the contract sued on to secure the faithful performance by appellees of their part thereof, alleging a breach, and asking damages therefor as provided in said contract. To this cross complaint the appellees answered in two paragraphs,-First, a general denial; and, second, specially alleging facts to show not only that the delay alleged in the cross complaint was caused by the acts of appellant, but that, subsequent to the making of the contract, that part thereof upon which the appellant sought a recovery in its cross complaint had by agreement been changed, etc. The appellees insist that the court below did not err in overruling the demurrer to this answer. In support of this contention it is urged that the paper filed, and denominated a “demurrer,” is insufficient to raise any question as to the sufficiency of the answer to constitute a defense to the cause of action alleged in the cross complaint. The demurrer, omitting the caption, reads as follows: “Comes now the cross complainant, and demurs to the second paragraph of answer to cross complaint, and says that said paragraph does not contain facts sufficient to constitute a cause of action.” That the demurrer is insufficient in form, and does not test the sufficiency of the facts alleged in the answer to constitute a defense to the cause of action alleged in...