24 Ind. App. 147 | Ind. Ct. App. | 1899
The appellant by its complaint in one paragraph sought to recover upon a joint and several promissory note payable at a certain bank in this State, indorsed before maturity for value and in the regular course of business by the payee to the appellant, the action being against the makers. After the commencement of the action, the appellant filed its second paragraph of complaint, which is not in the transcript of the record. In the place where it should have been copied, in parenthesis, are the words “Second paragraph not with the files.” Afterward, the defendants, except Daniel J. Nicely and D. J. McFarland, filed their answer consisting of three paragraphs, the first being a general denial. A demurrer to the second and third paragraphs having been sustained, the same defendants filed additional paragraphs of answer, numbered fourth, fifth, and sixth, each being a special answer of the defendants, except said Nicely and McFarland, and each being directed to the entire complaint. The record states that the defendants also filed another pleading, called in the record entry their cross-complaint, and in the place where a copy thereof should have been inserted in the transcript are, in parenthesis, the words “Gross-complaint not with the files.” The plaintiff demurred to each of the fourth, fifth, and sixth paragraphs of amended
Counsel have discussed the action of the court in overruling the demurrer to each of the fifth and sixth paragraphs of answer. To render either paragraph sufficient on demurrer, it must have presented a sufficient defense to the entire complaint, one paragraph of -which is not before us. If these answers presented good defenses to the first paragraph of complaint, which is in the record, we, presuming in favor of the action of the court below where error is not shown by the record, could not say that the demurrer should have been sustained, for we could not know that the answers were not sufficient on demurrer as to the second paragraph of complaint. If they did not present good defenses to the first paragraph, the demurrer should have been sustained, whether the second paragraph was good or bad. The court decided that they set forth sufficient defenses to the first paragraph of complaint, which is in the record, as well as to the second paragraph, which is not in the record. Therefore,if the answers in question were insufficient as to the first paragraph of complaint, the court erred in overruling the demurrer, and the record shows the error.
The fifth and sixth paragraphs of answer were each quite lengthy. They were based upon substantially the same“ kind
The action of the court in sustaining the motion to strike out a part of the complaint is not properly presented for
It appears from what we have said that, when the cause was tried, there had been filed, and it must be presumed there continued to be on file, two paragraphs of complaint, of the contents of one of which we know nothing, and that some portion had been struck out of the complaint, probably out of the first paragraph, though this is not as certain as such a matter should be. What part, what language, was struck out is not sufficiently indicated. Three special paragraphs of answer directed to the entire complaint as it was before a part of it was struck out remained on file, and a pleading spoken of in the clerk’s entry as a cross-complaint had been filed by the defendants before the motion to' strike out part of the appellant’s complaint. This so-called cross-complaint does not appear to have been withdrawn, but of its contents or legal effect we are not informed.
The judgment is affirmed.