| Ind. | Nov 15, 1876
Appellee, as plaintiff, sued appellant, as defendant, in the court below.
In her complaint appellee alleged, in substance, that on February 25th, 1871, appellant was duly appointed by the court of common pleas of Lawrence county, Indiana, administrator with the will annexed of Leonard Roy, deceased, and entered upon the discharge of the duties of his said trust; that appellee was the widow of said Leonard Roy, deceased, and as such widow she was entitled under the law to take, of the property inventoried as belonging to said estate or of the money belonging thereto, the sum of five hundred dollars, in addition to the one-third of said estate she was entitled to as such widow; that on March 21st, 1871, an inventory and appraisement of the personal estate of said decedent was duly made, a copy of which inventory and appraisement was filed with and made part of said complaint; that said personal estate was of the value of one thousand and forty-one dollars and sixty-five cents, and appellee selected and offered to take of said personal property embraced in said inventory
Appellant answered appellee’s complaint by a general denial of every allegation therein. And the action being at issue was tried by a jury in the court below, and a verdict returned for appellee, assessing her damages at four hundred and five dollars. There was a motion by appellant, upon written causes, for a new trial, which motion was overruled by the court below, and to this decision appellant excepted, and judgment was rendered by the court below upon the verdict.
In this court, appellant has assigned the following alleged errors :
1. Appellee’s complaint in this action did not state facts sufficient to constitute a cause of action;
2. That no judgment of any kind could be rendered, upon the facts set forth, in the complaint, in appellee’s favor; and,
3. Overruling appellant’s motion for a new trial.
In considering the first alleged error, it will be observed that appellant’s objection, to the' sufficiency of the facts stated in appellee’s complaint to constitute a cause of action, makes its first appearance in this court. "Where this is the case, the objections to the sufficiency of the complaint will be scrutinized more closely in this court, than they would be if a demurrer for the want of sufficient
1. Because a copy of the will was not filed with the complaint;
2. Because it was not alleged in the complaint that appellee had elected to claim her rights in the estate of said Leonard Roy, deceased, as his widow, under the law, instead of under the last will and testament of said decedent; and,
3. Because, even if the facts stated in the complaint were true, the appellee would not be entitled to the specific relief asked for in her complaint.
To all which objections to the sufficiency of the complaint, it might well be answered in this court, that if there was anything in either of them they had all been obviated or cured by the agreement of the parties, the verdict of the jury and the action of the court below. This action was tried by the jury in the court below, not alone upon appellee’s complaint and the issues joined thereon, but also upon an agreement between the parties, made in open court, and set out in the bill of exceptions. This agreement was in substance, as follows; that if anything was due the appellee, from the estate of Leonard Roy, deceased, by reason of not having received the five hundred dollars allowed her as widow of said decedent, then, in that ease, the jury should find for the plaintiff against the defendant, and assess her damages at whatever sum they should find that she had not received of said five hundred dollars; and that upon such verdict, a personal judgment might be rendered in plaintiff’s favor against defendant; and upon the other hand, if the jury should find that nothing was due plaintiff on account of said five hundred dollars, then said jury should return a verdict for the defendant, and against the plaintiff; which agreement was entered into in open court. It was fur
Such was the agreement between the parties, under which this action was submitted to the jury for trial in the court below. This agreement effectually disposes of and removes all the objections urged by appellant to appellee’s complaint, if there were any objections which were not cured by the verdict. And not only so, but the agreement recited is also a sufficient answer to the second alleged error,—that no judgment of any kind could be rendered, upon the facts set forth in the complaint, in appellee’s favor. Eor, by the terms of said agreement, it was expressly agreed that if the jury should find for the appellee, and assess her damages at whatever sum they should find that she had not received of the five hundred dollars allowed her by law as the widow of her deceased husband, then, upon such verdict, a personal judgment might be rendered in appellee’s favor against the appellant.
The only matter remaining for our consideration in this cause is presented by the • third alleged error,—the
We find no error in the record, and no merit in the appeal.
The judgment of the court below is affirmed, with ten per centum damages, at the costs of the appellant.