Nave v. Wilson

33 Ind. 294 | Ind. | 1870

Elliott, J.

The first question to which our attention is called in the case arises upon the ruling of the court in overruling the demurrer to the second paragraph of the reply. That paragraph assumes to reply to the whole answer, but it fails to do so. The third paragraph of the answer alleges, that Matlock, the intestate, before his death, sold, transferred, and delivered the note in suit, for a valuable consideration, to one Sarah Matlock; that the intestate, at the time of his death, had no interest whatever therein; and that the plaintiftj as administrator of the decedent, had no right of action on said note. And the second paragraph of the reply neither denies nor confesses and avoids the matters so alleged in the third paragraph of the answer. The reply is therefore bad. But the judgment should not be reversed for that error. The first paragraph of the reply was a denial of the whole answer, and put in issue the matters alleged in the third paragraph of the answer, and threw upon the appellant the burden of proof; but no evidence whatever was adduced to sustain the allegations of the answer. The error was merely technical. Issues were properly made on all the paragraphs of the answer, and the appellant could not have been injured or prejudiced in his rights by the error of the court in the ruling on the demurrer.

A question is made as to the sufficiency of the fourth paragraph of the reply. We think it was good.

The court, to which the cause was submitted for trial, found for the appellee the amount of the note and interest; and it is claimed that the finding was excessive, from the evidence. This claim is, in part, based on the paragraph of the answer alleging a mistake made in drawing the note, by which it was made for too large a sum. The evidence fails to show the consideration for which the note was given. It was drawn by the appellant himself, and the evidence does not show that there was any error in the amount; and, in the absence of such proof, the amount named in the note must bo presumed to be correct. But it is further urged that the appellant should have been allowed the amount claimed as a set-off on the account set up for services, &c. The evidence, however, shows that the appellant had previously filed the same account as a claim against the estate of Matlock, the intestate, in the court of common pleas of Hendricks county; that upon the refusal of the administrator to allow it, a trial was had in that court and a final judgment rendered on the- merits, which still remains in full force. That judgment was a conclusive bar against the account as a set-off in this case. And as to the judgment for costs against the estate, claimed by the appellant as a set-os', the evidence shows that at the time of filing the answer, and of the trial in this case, the appellant had another action pending for the same cause, which precluded him from setting it up as a set-off in this suit. ¥e think the evidence sustains the finding of the court, and the judgment should be affirmed.

C. C. Nave and W. A. McKenzie, for appellant. L. M. Campbell, for appellee.

Judgment affirmed, with costs, and five per cent, damages.