20 Ind. 528 | Ind. | 1863
Lead Opinion
In December, 1860, the Bank of the State, for the use of the branch at Dawrenceburg, sued Bradley, Smith, and Stevenson, on a bill of exchange. The suit-was commenced by attachment. The attachment ivas executed immediately by the seizure of a large amount of property. This was in vacation. The next term of the Court was in May, 1861. At that term, answers were filed to the cause of action, and the attachment, after a motion to dismiss the attachment had been overruled. The paragraphs of the answer to the attachment were as follows:
1. A general denial of the existence of the facts alleged in the affidavit on which the attachment issued.
2. A special denial of the existence of each of the facts alleged in it.
The cause was then continued to the November ] term, 1861. On the 14th day of that term, being the 19th day of the month, the cause was tried, and the plaintiff recovered judgment for 9928 dollars and 72 cents, and thereupon the plaintiff moved the Court for an order for the sale of the property attached to satisfy this judgment, on the ground, says the bill of exceptions, and for the reason that judgment had been rendered in the main action without any trial or finding on the affidavit or writ of attachment, and also upon the ground and for the reason that no plea or answer, properly sworn to, had been filed to the affidavit and attachment, putting in issue, &e., but the Court refused the order for the sale of the property. The defendants then appealed from the general judgment in the cause, to the Supreme Court, and
On the 23d day of April, 1862, the attachment matter came up in the Decatur Circuit Court, and the Court dismissed it, on motion, for reasons specified, beginning with objections to the original affidavit in the attachment, and naming divers intermediate objectiofis down to the time of the motion to dismiss.
From this dismissal the plaintiff appealed to this Court, thereby again bringing together the parts of the same cause which should never have been separated.
On the 26th day of July, 1862, the defendants in the Court below, paid on the judgment against them, 10,355 dollars and 65 cents, which the Bank, the plaintiff, received, and which is claimed to have been in full of the principal and interest due on the judgment.
Ve will first take up the action of the Court below, on the attachment proceedings.
This suit was commenced by attachment. The attachment therefore, in this case, was not a separate auxiliary proceeding, but a part of the original suit; and the questions arising upon it were triable in that suit. Foster v. Dryfus, 16 Ind. 158; Fleming v. Dorst, 18 id. 493.
The issues on the attachment in the case were properly made up for trial, at the time of the trial of the merits of the cause of action; and hence, we must hold that they were then tried. Fischli v. Fischli, 1 Blackf. 360. The burden of proof on those issues was on the plaintiff, and, if he had any evidence to sustain them he should have produced it. The answers going to the attachment were not in abatement, and had they been, there was nothing in the statute requiring
In the Superior Courts oaths to pleadings, when required, do not change the burden of proof, except where the execution of a written instrument is denied. 2 6. & H. p. 101, sec. 65, note.
The Court did right, therefore, in refusing to order the sale of the property attached, and only erred in not rendering judgment, as a part of the general judgment in the cause, against the plaintiff, on the issues in attachment.
The Court erred, as will appear from what we have said, in granting a change of venue as to a part of a cause, especially after the whole cause had been tried, and was to be reviewed, if at all, on appeal, or by suit for review. It follows that the Court did not err in dismissing the proceedings pend ing in Decatur on the change of venue.
~We now turn to the answers going to the merits of th» cause of action.
The pendency of a suit in another State is not a bar to, oi a matter in abatement of a suit for the same cause in thi? State.
The other questions in the cause are substantially the same as those that were raised and decided in Smith et al. v. The Bank of the State, &c., 18 Ind. 327, and the decision of them in that case was adverse to the appellants.
We adhere to the rulings in that case.
The judgment in this case must, therefore, be affirmed, with costs, but without damages, the money having been paid and received soon after the appeal was perfected.
We turn now to the cross error assigned by the plaintiff. It is this:
The record shows that the Court sustained the plaintiff’s demurrer to each and all of said paragraphs.
The judgment is affirmed, with costs, or the plaintiff may dismiss his appeal at his costs, the practical result of either course being the same.
(1) The petition for a rehearing in this case was overruled on August 26, 1863, and the following additional opinion given by—
Rehearing
—
The petition for a rehearing of this ease raises the following questions, viz:
1. Where an attachment is obtained against the property of a defendant at the institution of suit against him on the ground that he is about to sell the same, &c., and the defendant appears personally, or by attorney, and for answer to the attachment branch of the suit, denies generally and specially the truth of the statements in the affidavit, is the answer one in abatement or in bar ?
2. If in abatement, should it be sworn to ?
3. If in abatement and not sworn to, but still not objected to on that ground, before trial, what is the consequence?
We need not decide the first and second questions, because.,
1. If the answer is not one in abatement, there was no error in the trial below.
2. If it is in abatement, there was no error in this case, because the answer was not objected to for want of verification; and an answer in abatement, not sworn to, forms a good issue if it is not objected to for that defect before trial.
Prior to 1843, the following section prescribed the practice in Indiana, upon pleas in abatement and non est factum:
“ Sec. 21. No plea in abatement, plea of non est factum, non-assignment, nor any other plea, replication or other pleadings,
Under this section, prohibiting the reception of pleas not ■sworn to, it is judicially settled that if the plaintiff permits the plea or answer to be received and a trial to be had upon it without objection, the trial is regular, and settles everything that could have been settled if the plea had been sworn to. In short, that such a plea or answer, so received, makes a valid issue.” Hagar v. Mounts, 3 Blackf. 57 S. C.; id. 261; McCormick v. Maxwell, 4 id. 168.
In the code of 1843, the above quoted section was, for the first time, in our State, divided, and a different i*ule prescribed for pleas of non est factum, while the old rule was left, exactly, as to pleas in abatement, &c. We quote the code:
“Sec. 200, [p. 706]. Pleas to the jurisdiction of the Court, and pleas in abatement, and all dilatory pleas which do not involve the merits of the action, shall not be received by any Court, unless the truth thereof be verified by oath or affirmation.”
“Sec. 216, [p. 711]. The plea of non est factum, non-assignment, &c., denying the execution, &c, shall not impose the necessity of such proof, &e., unless verified, &c.”
This section 216 is brought forward in the code of 1852, and an answer under it has not the effect of putting in issue the execution of a written instrument unless the answer be verified. Evans v. The Southern Turnpike Co., 18 Did. 101.
Section 200, above quoted, is not brought forward in the code of 1852; but it is contended that it is an omission which the Court should supply.
This may be so, and we incline to think it is; but when we bring forward the section, we bring with it its judicial construction, which, as has been shown, is, that if the answer is received and acted upon on the trial, without verification, the verification is waived by the party for whose benefit it is required, and the issue formed is good; and this accords both in letter and spirit with all our practice under the new code.
The petition must be overruled.