De Vay v. Dunlap

• Decision Date: 02 November 1892
• Docket Number: 986
• Citation: De Vay v. Dunlap, 7 Ind.App. 690, 35 N.E. 195 (Ind. App. 1892)
• Parties: DE VAY v. DUNLAP
• Court: Indiana Appellate Court

35 N.E. 195

7 Ind.App. 690

DE VAY v. DUNLAP

No. 986

Court of Appeals of Indiana

November 2, 1892

From the Marion Circuit Court.

Judgment affirmed.

R. O Hawkins and H. E. Smith, for appellant.

C. S Denny and W. F. Elliott, for appellee.

OPINION

GAVIN, C. J.

Appellee filed her complaint in two paragraphs, seeking to recover moneys alleged to have been deposited by her with appellant, to be repaid with interest.The first paragraph counted upon a verbal contract.The second was based upon a written receipt or certificate, executed by appellant.

Section 343, R. S. 1881, only authorizes the sufficiency of the complaint as a whole, to be presented on appeal by assignment of error.In order to test the sufficiency of the several paragraphs separately, demurrers must be filed in the court below, and the rulings upon demurrer assigned as error here.Trammel v. Chipman,74 Ind. 474;Carr v. State,ex rel., 81 Ind. 342;Tachau v. Fiedeldey,81 Ind. 54;Haymond v. Saucer,84 Ind. 3;Lake v. Lake,99 Ind. 339;Branch v. Faust,115 Ind. 464, 17 N.E. 898;Ashton v. Shepherd,120 Ind. 69, 22 N.E. 98.

The only objection urged to the complaint is that each paragraph shows the claim barred by the statute of limitations.There are several exceptions contained in our statutes, notably nonresidence, which prevent the statute from running, section 297, R. S. 1881, and there is nothing in the pleadings to negative the exception.

In order that the statute of limitations may be available as a defense, it must be pleaded, unless the complaint shows affirmatively that the plaintiff is barred, notwithstanding the exceptions.Potter v. Smith,36 Ind. 231;Hogan v. Robinson,94 Ind. 138;Medsker v. Pogue,1 Ind.App. 197, 27 N.E. 432;Christian v. State,ex rel., 7 Ind.App. 417, 34 N.E. 825.

The objection made to the complaint is not, therefore, well taken.

That the court erred in overruling the motion for a new trial, is also assigned as error.

The correctness of the court's action in giving and refusing instructions is presented in this motion by the following causes for a new trial:

"8th.The court erred in refusing to give the instructions numbered third, fourth, fifth, sixth, seventh and eighth, asked by the defendant, and in refusing to give the instructions as so asked."

"9th.The court erred in giving the instructions numbered third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth and thirteenth, upon its own motion."

The appellee contends that these causes for a new trial raise no question as to the correctness of the instructions asked, nor as to the incorrectness of those given, separately and severally, but that we must be limited in our consideration to the questions whether all those asked were good or all those given bad.In this contention counsel are correct.These assignments of cause for a new trial are each joint, not several.Each relates to all the series as an entirety.

Such an assignment brings in review the instructions as a whole, and if any one of the instructions given is good, or if any one of those refused is bad, then, so far as based on this series, the motion must fail.Ohio, etc., R. W. Co. v. McCartney,121 Ind. 385, 23 N.E. 258;Wallace v. Exchange Bank,126 Ind. 265, 26 N.E. 175;Rees v. Blackwell,6 Ind.App. 506, 33 N.E. 988.

Tested by this rule, which is the only test the law permits us to apply, the court committed no error.

Some of the instructions given are not assailed by counsel and are, beyond question, correct.Of those asked by appellant, some were clearly wrong because the second paragraph of the complaint was based upon the written receipt or certificate, which read as follows:

"INDIANAPOLIS, IND., Feb. 15th, 1883.

"Received of Mrs. Lydia Dunlap the sum of four hundred dollars, on deposit.

"$ 400.00. WM. O. DEVAY."

This instrument was more than a mere receipt for money, for it embodies the agreement of DeVay, not expressed therein in writing but imported into it by the law, to repay the money.

In the early case of Tisloe v. Graeter,1 Blackf. 353, a receipt substantially similar to this was held to constitute a contract.

In Long, Exec., v. Straus,107 Ind. 94, 6 N.E. 123, exactly such an instrument was held to be a written contract to which the six years' statute of limitations did not apply.

That it does constitute a written contract is sustained by Dale v. Evans,14 Ind. 288;Foulks v. Falls,91 Ind. 315;Smiley v. Fry,100 N.Y. 262, 3 N.E. 186.

In the language of the court in Long, Exec., v. Straus, supra:"As there is here a written contract, into which the law imports a promise to pay, the statute of limitations governing written contracts to pay money is the only one that applies."

We can not assent to the claim of appellant's counsel that...