Smith v. Smith

• Decision Date: 03 March 1886
• Citation: 106 Ind. 43,5 N.E. 411
• Parties: Smith v. Smith.
• Court: Indiana Supreme Court

106 Ind. 43

5 N.E. 411

Smith

v.Smith.

Supreme Court of Indiana.

Filed March 3, 1886.

Appeal from Steuben circuit court.

John M. Somers and F. S. Roby, for appellant.

Geo. B. Adams, for appellee.

Howk, J.

Appellee has filed a written motion to dismiss this appeal “for the reason that there is no assignment of errors entered on the transcript herein, as required by law.” The reason thus assigned is not shown to be true by the transcript herein, or in any other manner. The assignment of errors is entered on a blank page of the transcript, in substantial compliance with the requirements of the statute. Section 655, Rev. St. 1881. The motion to dismiss this appeal is overruled, with costs.

Errors are properly assigned here by appellant, the defendant below, which call in question (1) the sufficiency of the complaint; and (2) the overruling of his motion for a new trial.

In his complaint, appellee alleged that on the ------- day of April, 1883, he had an action at law pending in the Steuben circuit court, in Steuben county, against the appellant herein, Joel B. L. Smith, and in favor of appellee herein, Thomas A. Smith, to recover the sum of $4,000 damages, and that appellee was informed and believed, and at the time did believe, that he had a good and valid cause of action against such appellant; that appellant agreed with appellee that, if the latter would dismiss and discontinue his aforesaid action, appellant would pay appellee the sum of $2,000; that relying on such agreement, and believing that appellant would pay such sum of $2,000, appellee dismissed and discontinued his aforesaid action; and appellee averred that appellant had neglected and refused to pay such sum, or any part thereof, and that such sum was then due and remained wholly unpaid. Wherefore, etc.

Appellant's demurrer to appellee's complaint, for the alleged insufficiency of the facts therein stated to constitute a cause of action, was overruled; and this ruling is the first error of which complaint is here made by appellant's counsel in their brief of this cause. The point is made by appellee's counsel, and seems to be well made, that appellant's assignment of errors does not present the ruling on the demurrer to the complaint for the consideration of this court. Appellant has assigned here as error that the court below, the Steuben circuit court, had erred in overruling his demurrer to the complaint. No such ruling is shown by the transcript of the record on file in this court. It is shown by the record that appellant's demurrer to the complaint was overruled by the Noble circuit court, wherein this action was commenced by the appellee; but, upon the authority of Indiana, etc., Ry. Co. v. McBroom, 98 Ind. 167, and cases there cited, it must be held in the case at bar that the ruling of the Noble circuit court on the demurrer to the complaint is not presented for our consideration by appellant's assignment of errors.

The sufficiency of appellee's complaint is also challenged by appellant, by his assignment here, as error, that “the complaint does not state facts sufficient to constitute a cause of action.” Such an assignment of error is authorized, in civil actions, by the provisions of section 343, Rev. St. 1881, to the effect, substantially, that the defendant shall not be deemed to have waived “the objection that the complaint does not state facts sufficient to constitute a cause of action,” by reason of his omission to make such objection, “either by demurrer or answer.” Of course, such assignment of error questions the sufficiency of the complaint, after verdict and judgment thereon, with all their curative virtues, and all the presumptions indulged in their favor and support, for the first time in this court. When thus questioned, the...