Stiles v. Hasler
| Decision Date | 10 April 1914 |
| Docket Number | No. 8278.,8278. |
| Citation | 104 N.E. 878,56 Ind.App. 88 |
| Parties | STILES v. HASLER. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Martin County; J. W. Ogdon, Judge.
Action by Peter Hasler against Charles Stiles. From judgment for plaintiff, defendant appeals. Affirmed.
Frank E. Gilkison, of Shoals, for appellant. Hiram McCormick, of Shoals, for appellee.
Appellant appeals from a judgment for $50 recovered against him by appellee and relies for reversal on the following assigned errors: (1) Appellee's complaint does not state facts sufficient to constitute a cause of action against appellant. (2) The court erred in overruling appellant's demurrer to appellee's complaint.
[1] The complaint charges, in substance, that appellee, on the 7th day of August, 1911, purchased of appellant a bay mule for which he paid him $75; that at the time of said purchase and for the purpose of inducing appellee to purchase said mule appellant falsely and fraudulently represented said mule to be sound, with the exception that its wind was thick or defective; that at the time of making such representations the appellant well knew that said mule was sick, afflicted, and worthless; that it had at said time a disease known as “bull heaves”; that it, with the least exertion, would fall to the ground and would be unable to rise for a considerable space of time, and would in its efforts to breathe emit great quantities of blood and corruption from its nostrils; that all of said facts were known to the appellant at the time of making said representations; that soon after he purchased and took possession of said mule appellee discovered its sick and diseased condition and offered to return it to appellant and notified him that the condition of said mule was such that appellee could not remove it from his pasture near the city of Loogootee to Shoals where appellant lived, and demanded of appellant that he come and receive said mule and refund appellee the purchase price thereof, which appellant failed and refused to do; that by reason of appellant's failure to receive said mule appellee was compelled to feed and care for said mule which feed and care is of the value of $50; that appellee has been damaged in the price paid for said mule of $75; and that said mule is entirely worthless for any purpose. Judgment for $150 damages is demanded.
This action was begun on the 15th day of August, 1911, and after the amendment of sections 1, 85, and 89 of an act concerning proceeding (s) in civil cases, approved April 7, 1881 (Laws 1881, c. 38; Acts 1911, p. 415) was in force. Section 89, supra, section 3 of said amendatory act, being section 348, Burns 1914, eliminates from such original section the right therein reserved to assign as error in this court “the objection that the complaint does not state facts sufficient to constitute a cause of action.”
It follows that no reversible error is presented by the first assigned error. Robinson v. State, 177 Ind. 263, 266, 97 N. E. 929.
[2] That part of section 85, supra, here involved, as amended by section 2 of said amendatory act, being section 344, Burns 1914, subd. 6, provides that: “When a demurrer to any complaint is filed on the ground that the complaint does not state facts sufficient to constitute a cause of action, a memorandum shall be filed therewith stating wherein such pleading is insufficient for want of facts, and the parties so demurring shall be deemed to have waived his right thereafter to question the same for any defect not so specified in such memorandum.”
Appellant together with his demurrer for want of facts filed a memorandum stating wherein such complaint “is insufficient for want of facts,” as follows: ...
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