Spitzer v. Wright

• Decision Date: 28 November 1905
• Docket Number: 5,461
• Citation: 76 N.E. 261,36 Ind.App. 558
• Parties: SPITZER ET AL. v. WRIGHT ET AL
• Court: Indiana Appellate Court

76 N.E. 261

36 Ind.App. 558

SPITZER ET AL. v. WRIGHT ET AL

No. 5,461

Court of Appeals of Indiana

November 28, 1905

From Howard Superior Court; B. F. Harness, Judge.

Suit by Celian Spitzer and others against Walter B. Wright and another. From a decree for defendants, plaintiffs appeal.

Appeal dismissed.

Willits & Voorhis, for appellants.

Bell & Purdum and B. C. Moon, for appellees.

OPINION

ROBINSON, J.

Appellants, owners of certain street improvement bonds, in an earlier action foreclosed the lien of an assessment against an abutting lot, and upon a sale of the lot realized only a part of the amount found due. They now seek to charge the lots lying back of this lot and within 150 feet of the improvement with the deficiency. The suit was brought by appellants against "Walter B. Wright, Wright, wife of defendant Walter B. Wright." In the complaint it is averred "that defendant Walter B. Wright is the owner of said lots two and three in Rosenthal's first addition to the city of Kokomo, and that Wright, wife of defendant Walter B. Wright, holds or claims some interest in or lien upon said lots two and three, which interest or lien if any, is junior and inferior to plaintiffs' lien herein." To the amended complaint the following demurrer was filed: "The defendants, Walter B. Wright and Wright demur to plaintiffs' amended complaint herein, and assign as ground of demurrer, and to each of said grounds severally, that the court had no jurisdiction of the subject-matter," and for want of sufficient facts. This demurrer was sustained, "to which ruling the plaintiffs except," and refusing to plead further judgment was rendered against them.

Errors are assigned as follows: "Celian Spitzer, Adelbert L Spitzer, appellants, v. Walter B. Wright, Wright, wife of defendant Walter B. Wright, appellees. The appellants say there is manifest error in the judgment and proceedings in this cause, in this, to wit: (1) The court erred in sustaining the demurrer of Walter B. Wright and Wright, wife of defendant Walter B. Wright, to the amended complaint in this cause, and in rendering judgment against appellants upon their refusal to plead further. (2) The court erred in rendering judgment against appellants upon their refusal to plead further. Wherefore" appellants pray that the judgment be reversed. To this assignment appellee Walter B. Wright filed a separate answer, denying error. Subsequently he filed a motion to dismiss the appeal, on the grounds that the assignment of errors does not contain the full names of all the parties, that the first assignment improperly joins two alleged errors, and the second is not an assignment of any action of the court...