54 Ind. 267 | Ind. | 1876
Complaint on six promissory notes secured by mortgage. Only one note was due at the commencement of the suit. Answers were filed, issues joined and proceedings had, which resulted in a judgment on the notes, and foreclosure of the mortgage, in favor of appellee. The defendants below appealed. The only question presented, and debated by the parties, is as to the sufficiency of the third paragraph of the answer, which is pleaded in abatement, and contains, substantially, the following averments :
That John M. Kerper, guardian of William W. Adams, filed his complaint against the said appellee, in the White circuit court, alleging that defendant was indebted to the plaintiff in the sum of four thousand dollars, on a certain written agreement; that proceedings in attachment were also commenced, as incident to said suit, by affidavit, bond, etc., upon which a return was had of no property found, whereupon said Rensselaer Greenman was made a garnishee-defendant, duly summoned, and required to answer as to his indebtedness to said Fox. That the venue was changed to the Tippecanoe civil circuit court, in which proceedings were had and judgment rendered against Fox for the sum of one thousand eight hundred and ninety-four dollars and sixty-one cents, and costs, from.
To this paragraph, a demurrer, alleging as cause the insufficiency of the facts therein stated, was sustained, and exceptions taken to the ruling.
According to the decisions of this court, this paragraph is good as an answer in bar. Covert v. Nelson, 8 Blackf. 265; The Junction R. R. Co. v. Cleneay, 13 Ind. 161; Shetler v. Thomas, 16 Ind. 223. See, also, Embree v. Hanna, 5 Johns. R. 101. The question then is presented, is it sufficient in the present case ?
The statute provides that, “ Whenever a complaint is filed for the foreclosure of a mortgage upon which there shall be due any intei’est or instalment of the principal, and there are instalments not due, if the defendant pay into court the principal and interest due, with costs, at any time before final judgment, the complaint shall be dismissed; etc. 2 R. S. 1876, p. 263, sec. 687. We think, in a case of this kind, where some of the instalments are not due, if the defendant can plead matter which answers the complaint as to the amount that is due, it is equiva
The judgment is reversed, with costs, and cause remanded, with instructions to proceed according to this opinion.
Petition for a rehearing overruled.