41 Ind. App. 481 | Ind. Ct. App. | 1907
-This was an action by appellant against appellee' upon a promissory note in the sum of $1,000, dated May 1, 1885, payable one day after date, and executed to appellant by decedent, John P. Oglebay, Jr. Appellee answered in six paragraphs. The first, second, third, fourth and fifth were defenses available to appellee under the statute. The sixth was estoppel. Appellant’s demurrer to -the
Appellant assigns errors as follows: (1) overruling the demurrer to the sixth paragraph of the answer; (2) overruling the motion to strike out part of the third paragraph of the answer; (3) overruling the motion for'a new trial.
The averments of said sixth paragraph are, in substance, that, by reason of the conduct of appellant toward Ada May Carr, and advice given her in the settlement of decedent’s estate, and because appellant procured the Tippecanoe Loan & Trust Company to be appointed administrator of said estate, and procured said trust company to bring an action with proceedings in attachment against said Ada May Carr to recover the amount which she had received as the purchase money from the sale of decedent’s real estate in order to pay the note sued upon herein, and caused the National Fowler Bank to be summoned as garnishee to answer for said money, which action in attachment and garnishment- resulted in a judgment in favor of said Carr and said bank, appellant is estopped from prosecuting the claim in this present action.
In Reed v. Higgins (1882), 86 Ind. 143, the demurrer
In Thomas v. Goodwine (1882), 88 Ind. 458, the demúrrér to the first paragraph of answer was for the following cause: “Because said defendant’s answer does not state facts sufficient to constitute an answer to plaintiff’s complaint.” Held, insufficient.
In Wintrode v. Renbarger (1898), 150 Ind. 556, the demurrer was for the reason that facts were not stated “sufficient to constitute a good answer to the complaint of the plaintiff.” The demurrer was held bad.
The dehmrrer in this case does not present any of the six causes of demurrer enumerated in the code, and therefore is insufficient. City of Tell City v. Bielefeld (1898), 20 Ind. App. 1; Flanagan v. Reitemier (1901), 26 Ind. App. 243; State v. Katzman (1903), 161 Ind. 504.
The court committed no error in overruling the appellant’s demurrer to the answer in this cause.
The further reasons are assigned as showing error in the overruling of the motion for a new trial: (1) The verdict is not supported by sufficient evidence; (2) the verdict is contrary to law. Both may be determined by the consideration of the sufficiency of the evidence.
We find no available error. The judgment is affirmed.