Marshall v. Beeber, 53 Ind. 119

Marshall v. Beeber

53 Ind. 119 | Ind. | 1876

Downey, C. J.

This was an action by the appellee against the appellant for the price and value of lumber sold and delivered. The,defendant answered in three paragraphs, the second of which was a general denial.

On motion of the plaintiff, the court struck out the first and third paragraphs of the answer.

Upon the issue formed by the general denial, there was a trial by a jury, and a verdict for the plaintiff. A motion for a new trial, made by the defendant, was overruled, and there was judgment for the plaintiff for the amount of the verdict.

Errors assigned:

1. Sustaining the motion to strike out the first and second paragraphs of the answer.

2. Overruling the motion for a new trial.

Other errors are stated, but they are only reasons for a new trial, and we take no further notice of them.

¥e examine the errors properly assigned.

The first paragraph of the answer was properly struck out, for the reason that it amounted to nothing more than the *120general denial. It states that there is a defect of parties herein, in this, to wit, that the plaintiff herein has no interest in the cause of action; that the lumber, the price of which is sued for, was sold by the plaintiff to one George "VV. Say les, and by Say les to the defendant; and that defendant never purchased of plaintiff any portion of said lumber. If the defendant never purchased the lumber of the plaintiff, we do not see that there can be any better form in which to present that question than by the general denial.

As to that part of the first assignment of error which complains of striking out the second paragraph of the answer,, it is sufficient to say that no such motion or ruling seems to have been made.

• There is no question presented under the second alleged error which we can decide. Counsel complain of instructions given, and others refused, but there is no bill of exceptions in the record, nor does it, in any way, appear that any exception was taken to the rulings of the court, either in giving or in refusing to give instructions.

The judgment is affirmed, with ten per cent, damages and costs.