63 Ind. 21 | Ind. | 1878
Iii this action the appellee, as plaintiff, sued the appellant, as defendant, in a complaint of two paragraphs.
In the first paragraph the appellee alleged, in substance, that, on the 3d day of January, 1871, one John Baker obtained a judgment against the appellant for the sum of three hundred and thirty-five dollars and eighty cents, and costs, in the court of common pleas of Knox county, Indiana; that afterward said Baker caused an execution to issue on said judgment, directed to the sheriff of said county, commanding him to satisfy the same out of the appellant’s property subject to execution; that, in pursu-.
In the second paragraph of Ms complaint, the appel lee alleged, that, on the 10th day of March, 1870, he, the appellee, sold and delivered to the appellant one bay horse, for which the appellant agreed to pay the appellee the sum of one hundred and twenty-five dollars, and that the said sum was justly due and unpaid. Wherefore, etc.
1. Because it did not state facts sufficient to constitute a cause of action;
. 2. Because two distinct causes of action were improperly joined therein; and, '
3. Because there was a defect of parties defendants therein, in this, that the sheriff', who made the levy and alleged sale, should have been a party defendant.
This demurrer was overruled, and to this decision the appellant excepted.
The appellant answered, by a general denial, the first paragraph of the complaint; and, to the second paragraph thereof, he answered in five paragraphs, m substance, as follows :
1. A general denial;
2. Payment in full, before the suit was commenced;
3. The cause of action did not accrue within six years next before the commencement of this suit;
4. That after the sale of the horse, alleged to have been' sold by the appellee to the appellant, there arose between them a difference of opinion as to the nature of the transaction, the appellee alleging and insisting he had sold said horse to the appellant, and the appellant insisting that the horse was a gift to him by the appellee; that then and there, by way of compromise, it was agreed between the parties, that the appellant should pay the appellee the sum of twenty-five dollars, and should deliver to him certain ai’ticles of the value of fifty dollars, and should work for him to the amount of ten dollai's; and the appellant averred, that he paid said money to the appellee, and delivered said articles to, and did said work for, the appellee, as agreed upon, before the commencement of this suit, and the appellee then and there received the same in full satisfaction of the demand sued for in the second paragraph of this complaint;
The appellee replied, by a general denial, to the second, third, fourth and fifth paragraphs of said answer; and to said third paragraph he further replied, that the appellant, within the last six years next before the commencement of this suit, paid the appellee a part of the purchase-money of said horse, thereby admitting the indebtedness for said horse.
The issues joined were tried by a jury, and a verdict was' returned for the appellee, assessing his damages in the sum of five hundred and ninety-two dollars and fifty-five cents.
The appellant’s motion for a new trial having been overruled, judgment was rendered on the verdict, on the 2d day of March, 1876, being the twenty-second judicial day of the February term, 1876, of the court below.
On the 4th day of March, 1876, being the twenty-fourth day of said term, the appellant moved the court for leave to withdraw his motion for a new trial, for the purpose of re-filing the same to be again passed upon by the court, and of reserving and saving an exception to the decision of the court, if the motion should be overruled, which
In this court, the first error complained of by the appellant is the decision of the circuit court, in overruling his demurrer to the first paragraph of appellee’s complaint.
It is earnestly insisted by the appellant’s counsel, that the facts stated in said first paragraph were not sufficient to constitute a cause of action, in favor of the appellee and against the appellant, because it is said that the appellee’s bid at the sheriff’s sale, and the payment of his bid to the sheriff, were voluntary acts on his part, and because there was no warranty in such sale. "We recognize the well settled rule, that there is no warranty in judicial sales. This rule has been approved, and acted upon by this court, in several recent decisions. Brunner v. Brennan, 49 Ind. 98; Weakley v. Conradt, 56 Ind. 430 ; Neal v. Gillaspy, 56 Ind. 451; and Weaver v. Guyer, 59 Ind. 195.
But it can not be said, we think, under the averments of the first paragraph of his' complaint, that the appellee was a mere volunteer or speculator, in his attempted and intended purchase of the appellant’s real estate, at the sheriff’s intended sale thereof. In the first paragraph of his complaint, the appellee alleged, that-he made his bid of four hundred dollars, at the sheriff’s sale, at the special instance and request of the appellant, and paid the money to the sheriff for the . appellant’s use. If these allegations are true, and, as they are well pleaded, the demurrer admits their truth, they are sufficient, independent of the other averments of the paragraph, to give the appellee a cause of action against the appellant for the recovery of the money paid at his request, and for his use, by the appellee, with interest thereon from the time of such payment. It seems to us, therefore, that no error was committed by the court in overruling the appellant’s demurrer to the first paragraph of the complaint, for the alleged want of sufficient facts to constitute a cause of action.
The third ground of demurrer was not well assigned ; for, under the view we have taken of the first paragraph of the complaint, it is very certain, we think, that the sheriff', who made the levy and alleged sale, was neither a necessary nor a proper party defendant. We hold, therefore, that the appellant’s demurrer to the first parapraph of the appellee’s complaint was properly overruled.
The appellant has assigned, as error, the decision of the court below, in overruling his motion for a new trial. The record shows, that, when this motion was overruled by the court, the appellant failed to except to the decision. The statute on this point is imperative: “ The party objecting to the decision must except at. the time the decision is made.” 2 R. S. 1876, p. 176, sec. 343. The courts have no discretion on this point; they may give timé to reduce the exception .to writing, but not to make the exception. The error of the circuit court, if it exists, in overruling the motion for a new trial, is not properly saved in the record, and therefore the assignment of this error, in this court, presents no question for our decision.
The appellant earnestly complains of the action of the circuit court in refusing him leave to except to the overruling of his motion for a new trial, two days after the decision was made. It is claimed, that it was within the discretion of the court to grant leave to the appellant to except, after the decision was made, and that the denial of such leave was an abuse of discretion, We think, that the
N or do we think that the court erred, in overruling the appellant’s motion for leave to withdraw his motion for a new trial for the purpose of re-filing the same tobe again decided by the court, and of enabling the'appellant to except to such decision at the time it was made. This would have enabled the appellant to accomplish, by indirection, what the court could not authorize him to do directly. The court very properly, we think, denied the appellant such leave, for such purpose.
The evidence on the trial is properly in the record, and fully sugtains, in our opinion, every material averment of the complaint. It seems to us, therefore, that “ the merits of the cause have been fairly tried and determined in the court below,” and, in such a case, the statute forbids that we should reverse the judgment. 2 R. S. 1876, p. 246, sec. 580.
We find no error in the record, of which the appellant can complain.
The judgment is affirmed, at the appellant’s costs.