State ex rel. Baltimore & S.W.R. Co. v. Daly

• Decision Date: 10 January 1911
• Docket Number: No. 21,646.,21,646.
• Citation: 93 N.E. 539,175 Ind. 108
• Court: Indiana Supreme Court
• Parties: STATE ex rel. BALTIMORE & S. W. R. CO. v. DALY.

175 Ind. 108

93 N.E. 539

STATE ex rel. BALTIMORE & S. W. R. CO.

v.DALY.

No. 21,646.

Supreme Court of Indiana.

Jan. 10, 1911.

Appeal from Circuit Court, Scott County; Joseph H. Shea, Judge.

Application by the State, on the relation of the Baltimore & Southwestern Railroad Company, for mandamus to William H. Daly. From a judgment denying the writ, relator appeals. Affirmed.

S. B. Wells, McMullen & McMullens, Edward Barton, and R. S. Alcorn, for appellant. Kochenour & Prince, for appellee.

COX, J.

On September 11, 1908, a judgment for $19 and costs was rendered by appellee, then a justice of the peace of Jackson county, having jurisdiction of the cause against appellant; and thereupon at the request of the appellant the amount for a bond to appeal was fixed at $100 by appellee. On October 5th following, an appeal bond with no penalty named therein, but otherwise sufficient in form and properly executed, was left with a girl clerk at the office of the appellee in his absence by an attorney for appellant, who directed the clerk to call appellee's attention to it. Appellee was a blind man, and, when he subsequently came in after the departure of appellant's attorney, this girl clerk read the bond to him, and he directed her to mark it filed, but declined to accept and approve it because of the defect stated. In a few days thereafter (as to whether before or after the expiration of the time for appealing, the evidence conflicts) appellee informed appellant's attorney of his disapproval of the bond and the reason for it. On October 22, 1908, appellant filed in the Jackson circuit court a petition for a writ of mandate to require appellee “to approve said bond, to grant an appeal, and to make a proper transcript of said cause and proceedings, and to certify the same to the circuit court.” The issuing of an alternative writ was waived by appellee appearing and answering. To an amended petition which set out the defective bond, appellee answered by a general denial; and a second paragraph which is an argumentative denial. A demurrer to this latter paragraph of answer was overruled, and appellant filed a reply to it of general denial; and so the issue was formed. Subsequently appellant asked and was granted a change of venue, and the cause was sent to the Scott circuit court, where a trial by court was had, and a finding announced that appellant was not entitled to a mandate against appellee to approve the bond in question. A motion for a new trial was filed by appellant and overruled, and a judgment which followed the finding was rendered.

Appellant has assigned error as follows: (1) In overruling the demurrer of appellant to the second paragraph of answer. (2) In overruling appellant's motion for a new trial. The reasons assigned for a new trial were that the decision of the court was not sustained by sufficient evidence, and that it was contrary to law.

There was no error in overruling the demurrer to the second paragraph of answer. Under an answer of general denial a defendant is not confined to mere negative proof in denial of the facts alleged in the complaint as the cause of action, but may introduce proofs of facts independent of, and inconsistent with, those alleged in the complaint, and which tend to meet and defeat the cause of action set up. All the material facts averred in his second paragraph of answer appellee would have been entitled to prove under his general denial. It is not available error to overrule a demurrer to an answer which is merely an argumentative denial. Jeffersonville, etc., Co. v. Riter, 146 Ind. 521-526, 45 N. E. 697;Adams v. Pittsburgh, etc., R. Co., 165 Ind. 648-655, 74 N. E. 991.

It cannot be said that the decision of the trial court is not sustained by the evidence or that it is contrary to law. Appellant had no natural, inherent right to appeal from the judgment rendered against it by appellee. The right of appeal from the judgment of a...