65 Ind. 108 | Ind. | 1878
On the 11th day of November, 1878, the appellants filed in this court the transcript of the record of this cause, and their assignment of errors thereon.
The appellee appeared and filed his answer to this appeal, in which he alleged, in substance, that, “ on the 4th day of April, 1878, the above entitled cause was tried and finally disposed of in the said Howard Circuit Court; that, prior to the commencement of this cause iu said court, the appellee tendered to said appellants the sum of three hundred dollars, as the amount due to said appellants, and, at the time of the filing of their complaint, he paid into court, for the use of said appellants, the said sum of $300; that, on the trial of said cause, the court found that there was due to the said complainants the further sum of $93, making in all $393 ; that he then and there paid into court the further sum of $93, making in all the sum of $393 ; that, on the 12th day of April, 1878, the said appellants received and accepted the said sum of $393 from the clerk of said court, in full of the amount due to them from the said appellee, and then and there receipted for the same; that afterward, on the 11th day of November, 1878, the said appellants filed the record of this cause in this court; and so this appellee says, that, after the rendition Of the judgment in this cause, and before the appeal was taken in this cause, the said appellants received and accepted the
To the appellee’s answer, the appellants filed in this court their reply, in which “ they admit that said cause was tried on the 4th day of April, 1878, and that, prior to the commencement of said suit, the appellee tendered to the appellants $300, and paid the same into court, and that afterward, and before judgment, the appellee paid into court, for the use of the appellants, the further sum of $93 : appellants further admit, that, on the 12th day of April, 1878, they received from the clerk of said court the sum of $343, he retaining $50 on costs, but they, deny that said sum was so received or accepted in full satisfaction and discharge of all claims against the appellee. And the appellants aver the facts to be, as shown by the transcript and record in this cause, that no judgment was ever obtained by the appellants against the appellee, in said cause, nor was there a»y order of the court requiring the appellee to pay any sum of money to the appellants, nor into court, for their use. Appellants aver that said money was so paid to the clerk by the appellee voluntarily, as a tender to the appellants, and as such they accepted it, not in full, but as a payment to that extent of the amount due to them. The only judgment rendered in this cause was in favor of the appellee, against the appellants. Wherefore,” etc.
To this reply the appellee demurred, upon the ground that it did not state facts sufficient to constitute a good reply to his plea or answer.
The question presented for our decision, by the pleadings filed in this court, may be thus stated : Conceding the facts stated in the appellants’ reply to be true, as they have therein stated them, can they maintain and prosecute
It is very clear, we think, that the appellee paid into court the said sum of ninety-three dollars, not as a tender to the appellants of that amount of money, hut in compliance with the requirements of the court’s special finding, conclusions of law and judgment. The appellants received from and receipted to the clerk of the court for the sum of money thus paid by the appellee upon and in accord
We are clearly of the opinion, that the facts stated in the reply were not sufficient, under the appellees’ demurrer thereto.
The demurrer to the reply is sustained, and the appeal is dismissed, at the costs of the appellants.