Ham v. Carroll

| Ind. | Dec 12, 1861

Davison, J.

This was an action by the appellee, who was the plaintiff, against Reuben Thurston, Mary Thurston, Jason Ham, Joel Railsbaolc and William Re Graff, to foreclose a mortgage on real estate.' The mortgage was executed by Reuben, and Mary Thurston, to Re Graff, to secure the payment of three promissory notes, each for $833. The first of these notes has been paid. The second and third were, together with the mortgage, assigned by Re Graff to the plaintiff. It is averred in the complaint, that Reuben and Mary Thurston, after the execution of the notes and mortgage, conveyed the mortgaged premises, by deed in fee simple, to Jason Ham., who, afterward, by deed of assignment for the benefit of his creditors, conveyed the same premises to Joel RailsbaeJe, in whom the legal title now is. Wherefore, &c. Reuben and Mary Thurston were defaulted. Ram and Railsback answered the complaint. In their answer they allege, that on April 19, 1858, and prior to the assignment of the notes and mortgage to the plaintiff, one Isaac Bates commenced a suit of attachment against Be Graff,\ the payee of the notes, and such proceedings were had in the premises, that afterward, on April 24, 1858, a writ of garnishment was sued out and served on one Lewis Burk, with whom the notes and mortgage had been placed for collection; and, afterward, on May 5, then next following, a similar writ was served on the defendants, to stay in their hands the moneys thereon due; and the defendants aver that the plaintiff did not, at the time the writs of attachment and garnishment were issued, own and possess said notes and mortgage.

Railsback also filed a separate answer, setting up the commencement of the attachment suit against Be Graff,\ the summons against him as garnishee, and alleging that upon the service of the writ of garnishment, he became liable to pay the amount due on the notes to Bates, the attachment plaintiff, &c. To these answers demurrers were sustained, and the-defendants, by leave, &c., amended. The answer, as amended, states all the facts alleged in the former answers, and, in addition, sets up that at the time Ram purchased the mortgaged premises from Thurston, it was expressly agreed between Be Graff Thurston and Ram,, that Be Graff should take Ram for the amount due on the notes and mortgage, and look to Mm and said mortgaged premises, exclusively, for the money. There was a reply in denial of the amended answer. The issues were submitted to the Court, who found for the plaintiff, and, having refused a new trial, rendered a judgment against Thurston for the amount of the notes and interest, and ordered the premises to be sold, &c.

The causes fora new trial are thus assigned: 1. Excessive damages awarded against defendant. 2. The finding is unsustained by the evidence. 3. Error of law occurring at the trial, and excepted to at the time. It may be noted that the third cause is not well assigned. Each error of law should have been pointed out and presented to the Court. Snodgrass et al. v. Hunt, 15 Ind. 274" court="Ind." date_filed="1860-12-10" href="https://app.midpage.ai/document/snodgrass-v-hunt-7034972?utm_source=webapp" opinion_id="7034972">15 Ind. 274; Kent v. Lawson, 12 id. 675.

William, H. Bielde, G. H. Burehenal and J. Railsbaclc, for the appellants. Oliver P. Morton, for the appellee.

The record shows that during the trial, the defendant Railsbaek offered his co-defendant, Ham,, ás a witness, and proposed to prove by him the agreement set up in the amended answer; but the offer was refused, and the defendant excepted. As this ruling does not appear to have been assigned as a cause for a new trial, the question whether the exception to it was or not well taken, is not properly before us. Snodgrass et al. v. Hunt, and Kent v. Lawson, supra.

Again, it is said that the Court erred in sustaining the demurrers to the answer. In this instance, the amended answer embraced all the matter contained in the original answer, and the result is, the answer first filed is no part of the record. 2 R. S., §559, pp. 159, 160. And, moreover, the defendants having amended their answer, after demurrer sustained to it, waived their right to complain of the sustaining of the demurrers. Polleys v. Swope, 4 Ind. 217" court="Ind." date_filed="1853-06-06" href="https://app.midpage.ai/document/polleys-v-swope-7032306?utm_source=webapp" opinion_id="7032306">4 Ind. 217; Jay et al. v. Indianapolis, &c. Railroad Co., ante, p. 262.

Per Guriam. — The judgment is affirmed, with 5 per cent, damages and costs.