State ex re l.Neal v. Kamp

• Decision Date: 16 October 1886
• Parties: State ex rel. Neal v. Kamp and others.
• Court: Indiana Supreme Court

8 N.E. 714

State ex rel.

Neal

v.Kamp and others.

Supreme Court of Indiana.

October 16, 1886.

Appeal from Vanderburgh circuit court.W. F. Smith, for appellant. S. R. Hornbrook and V. Bisch, for appellee.

Mitchell, J.

Neal, as the successor of Kamp, in the office of trustee of Union township, in Vanderburgh county, brought suit as relator on behalf of the state against his predecessor, and the sureties on his official bond. The complaint is in seven paragraphs, and charges various defalcations and delinquencies against the ex-trustee. There was no demurrer or other objection to the complaint. The record recites that on the twenty-first day of May, 1884, the defendant filed his answer in one paragraph to the first paragraph of plaintiff's complaint. On the day following, the record shows that the defendant filed a cross-complaint. On the twenty-fifth day of May, as appears from the recitals, the defendant filed an answer in three paragraphs. The first paragraph purports to be an answer to the second paragraph of the complaint. On the thirtieth day of May the plaintiff demurred to the first paragraph of the defendant's answer, but whether the demurrer was addressed to the first paragraph of the answer, to the first or second paragraph of the complaint, both the record and the demurrer fail to disclose. As there were two paragraphs of answer separately filed, both of which were relatively first, one to the first and one to the second paragraph of the complaint, the record fails to indicate with sufficient certainty to which paragraph the demurrer relates. It can be applied as well to one as the other, from anything that appears. For the foregoing reasons the assignment that the court erred in overruling the demurrer to the appellee's answer presents no question.

What purports to be a special finding of facts by the court, with conclusions of law stated thereon, is copied into the record. It does not appear that either party requested a special finding of facts, nor are those found in the record signed by the court. Under such circumstances, an exception to the conclusions of law presents no question. It is only where special findings are made in pursuance of a request, and conclusions of law stated thereon, and signed by the court, that an exception is available.

A motion for a new trial which challenges the sufficiency of the evidence was overruled. Notwithstanding the bill of exceptions closes with the formal statement, “This was all...