Scott v. Collier
| Decision Date | 05 June 1906 |
| Docket Number | 20,817 |
| Citation | 78 N.E. 184,166 Ind. 644 |
| Parties | Scott et al. v. Collier |
| Court | Indiana Supreme Court |
From Wabash Circuit Court; A. H. Plummer, Judge.
Suit by Emma B. Collier against Nancy J. Scott and another. From a decree for plaintiff, defendants appeal. Appealed from Appellate Court under subd. 3, § 1337j Burns 1901, Acts 1901, p. 565, § 10.
Affirmed.
Kenner Lucas & Kenner, for appellants.
B. M Cobb and C. W. Watkins, for appellee.
This is an appeal from the judgment of the first division of the Appellate Court, affirming a judgment of the Wabash Circuit Court. It appears that appellee commenced this action against appellants in the Huntington Circuit Court to recover on a promissory note and for the foreclosure of a mortgage executed to secure the payment thereof. The case was venued to the Wabash Circuit Court.
Appellants filed a joint answer to the complaint. Nancy J. Scott also filed a separate answer, alleging therein that at the time she executed the note and mortgage she was a married woman and had executed the same as a surety of her husband, her codefendant in the action; that the note was executed by her to the plaintiff for borrowed money which was used and applied in paying the separate debts of her said husband, and that no part thereof was expended or used for her benefit, etc. Appellee replied by the general denial to the joint answer of appellants, and to the separate answer of Nancy J. Scott she replied affirmative matter in avoidance of said answer. To this reply appellants severally demurred, assigning as the only ground of demurrer that the reply did not state facts sufficient to constitute a defense to the defendants' answer. This demurrer was overruled, to which defendants excepted, and this is the ruling upon which the second assignment of error is predicated. Upon the issues joined between the parties there was a trial by the court and a special finding of facts and conclusions of law thereon in favor of appellee. Over appellants' motion for a new trial, assigning therein that the special findings are not sustained by sufficient evidence and are contrary to law, a judgment was rendered in favor of appellee, against both appellants, for $ 6,744.16, principal, interest and attorneys' fees, and a foreclosure of the mortgage was decreed. From this judgment appellants appealed to the Appellate Court, and separately assigned: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that the court erred in overruling the separate demurrer of appellants to appellee's reply; (3) that the court erred in not sustaining their motion to modify the special finding of facts; (4) that the court erred in not sustaining their motion to state conclusions of law on each material fact found; (5) that the court erred in overruling the motion for a new trial.
An examination of the complaint discloses that appellee complains of Nancy J. Scott as principal and Joseph Z. Scott as surety, and alleges that on August 8, 1898, said Nancy J. Scott became indebted to appellee in the sum of $ 4,954.53, as evidenced by a note, a copy of which is filed with and made a part of the complaint. The execution of the mortgage on the premises described in the complaint to secure the payment of said note is shown by the averments of the complaint, and a copy of the mortgage is filed with and made a part of the pleading. It is averred that the note is due and unpaid, and a demand is made for judgment for $ 7,000, principal, interest and attorneys' fees, and a foreclosure of the mortgage.
The contention of appellants in respect to the insufficiency of the complaint is that, by reason of the fact that they are husband and wife, the pleading in order to state a cause of action against Nancy J. Scott, the wife, must by proper allegation or averment show that the contract in suit was one into which she, under the law, as a married woman, had the power to enter. But counsel seemingly misapprehend the fact that the complaint in this case does not upon its face, nor by either of the exhibits filed therewith, disclose that the relation of husband and wife existed between the appellants at the time of the execution of the note and mortgage in suit. As to whether Nancy J. Scott was at that time a married woman the complaint is entirely silent. Consequently, the point advanced as to its sufficiency is wholly without support. Whether the pleading would be sufficient as to both appellants if tested by a demurrer we need not, and do not, decide. That under the facts therein alleged, it is sufficient as against an attack for the first time on appeal is settled beyond controversy. Xenia Real Estate Co. v. Macy (1897), 147 Ind. 568, 47 N.E. 147; Peoria, etc., R. Co. v. Attica, etc., R. Co. (1900), 154 Ind. 218, 56 N.E. 210.
It will be noted that the cause assigned in the demurrer of appellants to the reply of appellee to the separate answer of Nancy J. Scott is that said reply does not state facts sufficient to constitute a defense to the answer. No such ground or cause for demurring to a reply is recognized by our civil code and for that reason alone, if for no other, the court did not err in overruling the demurrer. Therefore appellants' second assignment of error must fail. Peden v. Mail (1889), 118 Ind. 556, 20 N.E. 493; Krathwohl v. Dawson (1895), 140 Ind. 1, 6, 38 N.E. 467.
The third and fourth assignments of error, as shown, are based on rulings of the trial court in denying motions to modify the special finding of facts, and to have the court find certain other additional facts and to state other conclusions of law. There is no rule of practice or procedure authorizing such motions, hence, the court did not err in denying each and all of them. Tewksbury v. Howard (1894), 138 Ind. 103, 37 N.E. 355; Windfall Nat. Gas, etc., Co. v. Terwilliger (1899), 152 Ind. 364, 53 N.E. 284; Wolverton v. Wolverton (1904), 163 Ind. 26, 71 N.E. 123; Royse v. Bourne (1897), 149 Ind. 187, 47 N.E. 827.
The fifth and last error assigned is the overruling of appellants' motion for a new trial. The motion in question assigns the following reasons: (1) The special finding of facts is not sustained by sufficient evidence; (2) the special finding of facts is contrary to law; (3) special findings four, five, six and eight are not sustained by sufficient evidence and are contrary to law.
The latter assignment, that certain enumerated findings are not sustained by sufficient evidence, etc., is not a proper assignment in a motion for a new trial, and...
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