150 Ind. 301 | Ind. | 1898
The appellees sued the appellants in the Washington Circuit Court to recover attorneys’ fees upon a written contract. There was an answer filed leading to issues of law and fact. The venue was changed to the Jackson Circuit Court. A trial of the issues of fact in that court resulted in a verdict and judgment in favor of the plaintiffs in the sum of $7,500.00 over appellants’ motion for a new trial. Among the numerous errors assigned, are that the trial court erred in overruling a demurrer to the amended complaint for want of sufficient facts, that said complaint does not state facts sufficient to constitute a cause of action, and that the court erred in overruling the defendants’ motion for a new trial. The contract sued on is as follows: “Ellen McIntosh and Andrew J. McIntosh her husband, have this day employed as counsel to contest the will of W. C. De-Pauw, deceased, and to conduct all legal proceedings
But there is an element in the complaint beyond the scope of the mere written contract that exerts an influence upon the right of the several obligees or payees therein to maintain a joint action thereon. That element is the allegation of fraud and misrepresentations of the defendants as to the amount Mrs. Mein-, tosh had received from the estate of her father on the compromise, thereby inducing the said attorneys to
“Mr. Pomeroy, who has as strongly as any one urged a liberal .construction of the code and an extension of its provisions, affirms that the common law principle has not been abrogated. In discussing the question he said: ‘In actions ex contractu, all the persons having a joint interest must be made plaintiffs, and, when one of them dies, the action must be brought or must proceed in the names of the survivors; the personal representatives of the deceased obligee or promisee cannot be joined as co-plaintiffs; and in the same manner, in actions ex delicto for injuries to personal property, all the joint owners must unite, and if one of them dies, the action is to be prosecuted by the survivors alone. These common law rules remain in full force.’” It follows that the complaint shows upon its face that it did not state facts sufficient to constitute a cause of action in favor of one of the plaintiffs, namely, Edith M. Friedly, administratrix of. George W. Friedly, deceased, the same as if the complaint had alleged the existence of a partnership between Friedly and Giles. But the existence of such a partnership was directly alleged by the second paragraph of the answer to which the court sustained a demurrer for want of sufficient facts. It averred that at the time the contract sued on was executed, and the time the services were performed thereunder by Friedly and Giles they were partners in the practice of law. It concludes with the statement: “That Edith M. Friedly, admx., etc., is therefore not a proper party
And as was said in Willson v. Nickolson, supra: “It has long been a well settled rule of law, that a surviving partner is entitled to the exclusive possession and control of the assets of his firm, including choses in action, for the purpose of settling and closing up the
It is firmly settled in this State that a complaint which does not state a good cause of action as to all, though it does as to some of the plaintiffs, is bad as to all, for want of sufficient facts to constitute a cause of action. Berkshire v. Shultz, 25 Ind. 523; Davenport v. McCole, 28 Ind. 495; Debolt v. Carter, 31 Ind. 355; Patman v. Leet, 41 Ind. 133; Maple v. Beach, 43 Ind.
For the errors of overruling the demurrer to the complaint for insufficiency of the complaint, and error in sustaining the demurrer to the second paragraph of the answer, the judgment must be, and is, reversed.