Tracewell v. Farnsley

• Decision Date: 07 January 1886
• Citation: 4 N.E. 162,104 Ind. 497
• Parties: Tracewell, Adm'r, etc., v. Farnsley.
• Court: Indiana Supreme Court

104 Ind. 497

4 N.E. 162

Tracewell, Adm'r, etc.,

v.Farnsley.

Supreme Court of Indiana.

Filed January 7, 1886.

Appeal from Harrison circuit court.

W. N. Tracewell, for appellant.

Douglass & Stockslager, for appellee.

ELLIOTT, J.

The appellee filed a petition, consisting of two paragraphs, asking that personal property be set apart to her as the widow of William H. Farnsley, deceased. In the first paragraph she claims $500 under the law of Indiana, averring that her husband was a resident of this state at the time of his death, although temporarily absent in Kentucky. In the second, she claimed $700 under the law of the state of Kentucky, where her husband died. The appellant's contention is that the second paragraph is bad because it does not set out the statute of Kentucky. We do not deem it necessary to decide the question argued, for it affirmatively appears that the appellee was allowed only $500, and that the finding and judgment rest on the first paragraph of the petition. It has been again and again decided that where it affirmatively appears on the face of the record that the judgment rests on a good paragraph of a pleading, an error in overruling a demurrer to a bad paragraph is harmless. This is in harmony with the general rule which prevails almost everywhere that where it is clear that the error did not prejudice the rights of the appellant, the judgment will not be reversed. Lancaster v. Collins, 6 Sup. Ct. Rep. 33;Hornbuckle v. Stafford, 111 U. S. 389;S. C. 4 Sup. Ct. Rep. 515;Mining Co. v. Taylor, 100 U. S. 37. This general rule has been many times declared and enforced in this court. Judgment affirmed.