35 Ind. 27 | Ind. | 1870
This was an action by Cox against the defendants, Vickers and Vickers,to be allowed to redeem certain lands described in the complaint.
The complaint is in one paragraph, and alleges that on the 15th day of March, 1866, one Branson H. Boling was the owner of certain lands therein described; that there was a
The deed from Boling and wife to Cox, the mortgage from Boling and wife to Addison' B. Vickers, the copy of the decree of foreclosure, the copy of the assignment of judgment, the copy of.decree on which the land was sold, together with the sheriff’s return thereon endorsed, are filed with the complaint and' made part thereof
Defendants filed demurrer to the complaint, alleging for cause, first, that the same does not state facts sufficient to constitute cause of action; second, want of jurisdiction; third, defect of parties; fourth, misjoinder of parties defendants. The demurrer was overruled, and an exception taken.
The plaintiff filed a demurrer to the second paragraph of this answer, alleging for cause, first, that said answer did not state facts sufficient to entitle the defendant to the relief prayed; second, that there was a defect of parties.
The demurrer to the, second paragraph of the answer was overruled and excepted to by the plaintiff. The plaintiff then replied to the second paragraph of the answer by general denial.
The cause was tried by a jury, who found a general verdict for the defendant, together with answers to interrogatories propounded by the defendants.
At the proper time, the plaintiff asked leave to commence the evidence, which the court refused, and allowed the de
At the proper time, the plaintiff asked leave to open and close the argument to the jury, which the court refused, and allowed the defendants to open and close the argument, to which the plaintiff at the time excepted.
Upon the return of the verdict, the plaintiff moved the court for judgment on the pleadings, notwithstanding the verdict, which motion was overruled and excepted to by the plaintiff
The plaintiff moved for a new trial, first, because the court erred in overruling the plaintiff’s demurrer to the defendants’ answer; second, the court erred in overruling the'plaintiff’s motion for judgment on the pleadings; third, the court erred in refusing to allow the plaintiff to open and close the evidence and argument to the jury; fourth, the court erred in instructing the jury of ijs own motion as in instructions numbered two and three; fifth, the court erred in admitting evidence, &c.; sixth, the verdict is not sustained by the evidence; seventh, the verdict is contrary to the evidence; eighth, the verdict is contrary to law; ninth, the court erred in refusing instructions numbered one and two asked by the plaintiff
The court overruled the motion for a new trial and rendered judgment on the verdict for the defendants.
The errors assigned are, first, the court erred in overruling the demurrer to the second paragraph of the answer; second, in refusing judgment for the plaintiff on the pleadings ; third, in overruling the motion for a new trial.
The second paragraph of the answer was no defense to the action. The plaintiff) who was the owner by conveyance from Boling and wife of the equity of redemption, not having been made a party to the suit to foreclose the mortgage, was not in any way affected by the judgment. He had precisely the same right to redeem, therefore, that he had before the rendition of that judgment. If it had been desired to cut off his right to redeem, he should have been made a
This renders it unnecessary for us to decide the question • raised by the second assignment of error. But we may say that as the general denial was also pleaded, we think it was not error for the court to refuse to render judgment for the plaintiff on the pleadings, non obstante veredicto.
The court erred in refusing to- allow the plaintiff to have the open and close. The general denial being in, it was essential for the plaintiff to prove the truth of the allegations in his complaint, and this gave him the right to open and close.
We think that some of the instructions of the court to the jury based on the theory of the case set up in the second paragraph of the answer were incorrect.
' The motion for a new trial should have been sustained.
The judgment is reversed, and the cause remanded. Costs ■to the appellant.
Pettit, C. J., dissents, because he holds that the statute of June 4th, 1861, takes away all right to redeerii, except as provided for in that statute.