Stout v. Harlem

• Decision Date: 19 May 1898
• Parties: STOUT v. HARLEM.
• Court: Indiana Appellate Court

20 Ind.App. 200

50 N.E. 492

STOUT

v.HARLEM.

Appellate Court of Indiana.

May 19, 1898.

Appeal from circuit court, Posey county; O. M. Welborn, Judge.

Action by George W. Stout against Jacob M. Harlem, administrator of the estate of James A. McKie, deceased. From a judgment for the defendant, plaintiff appeals. Affirmed.

James W. Henson and C. E. Barrett, for appellant. C. M. Spencer and G. V. Menzies, for appellee.

ROBINSON, C. J.

Appellant filed a claim against the estate of appellee's decedent. The first error discussed is the overruling of appellant's demurrer to appellee's cross complaint. Upon the overruling of this demurrer, appellant answered the cross complaint in two paragraphs, the first being the general denial. Appellee demurred to the second paragraph of answer, and this demurrer was carried back and sustained to the cross complaint. As this ruling took the cross complaint out of the record, it accomplished the same result as would have followed the sustaining of appellant's demurrer. We are not informed how appellant could have been harmed by the ruling complained of.

The claim was filed in four paragraphs. Appellee filed an answer addressed to the third paragraph, but it is evident from an examination of the pleadings, as stated in appellant's brief, that “the answer was not only defective in its averments, but was wholly misdirected, thus amounting to no answer at all.” But, even if it was a good answer to the paragraph to which it is addressed, it purports to answer only one paragraph.

The statute gave appellee the right to make any defense except set-off or counterclaim without plea. Burns' Rev. St. 1894, § 2479 (Rev. St. 1881, § 2324). Upon the sustaining of the demurrer to the cross complaint, appellant moved “for judgment in his favor on the pleadings herein on paragraphs one, two, three, and four of his original demand against said decedent's estate herein.” This motion was overruled, and this ruling is assigned as error. The cross complaint was in no sense an answer. It could not be both an answer and a cross complaint. It must be the one or the other. The pleading was filed as a cross complaint, and was answered and treated as such by appellant. A pleading cannot perform the two-fold purpose of an answer in bar and also as asserting a cause of action. Conger v. Miller, 104 Ind. 594, 4 N. E. 300;Campbell v. Routt, 42 Ind. 410. So that, even if we should concede that one of the paragraphs was specially answered, there was no error in overruling the motion for judgment, for the general denial was in against the other paragraphs.

Appellant, after the overruling of the above motion, dismissed the second and third paragraphs of claim, and the cause was submitted for trial on the first and fourth paragraphs, resulting in a judgment in appellee's favor. A motion for a new trial must be sufficiently certain and specific to enable the court to identify the rulings without resort to any other part of the record. This court cannot look to the bill of exceptions to aid the motion, for the reason that the bill was not on file at the time the motion was presented to the trial court. It must appear that the ruling was fairly presented to the trial court for review before any question can be presented to the appellate tribunal. Sim v. Hurst, 44 Ind. 579;Rogers v....