111 Ind. 17 | Ind. | 1887
This was a suit by appellant’s relator, as plaintiff, upon the bond of one John B. Ruhlman, as executor of the last will of Bernhard Henry Ruhlman, deceased, against appellee Dores Ruhlman, as executrix of such executor, since deceased, and Henry Rahe, the surety in such executor’s, bond, as defendants.
The breach of the condition of the executor’s bond, assigned by the relator in his complaint herein, was, that said John B. Ruhlman, as such executor, had failed and neglected to inventory, or to charge himself with, in any manner, three promissory notes due and payable "to his testator, at the time of his death, and described in a bill of particulars filed with
The cause was put at issue and tried by a jury, and a verdict was returned for appellees, the defendants below, and over the relator’s motion fora new trial, the court adjudged that he take nothing by his suit, and that appellees recover of him their costs.
Errors are assigned here by appellant’s relator, which call in question the overruling (1) of his demurrer to the fourth paragraph of appellees’ answer, and (2) of his motion for a new trial.
The relator sued herein as an heir at law and legatee under the last will of Bernhard Henry Ruhlman, deceased. To the relator’s complaint, the appellees jointly answered in four paragraphs, of which the first was a general denial of the complaint, and each of the other paragraphs stated a special defence. The relator’s demurrers were sustained as to the second and third paragraphs, and overruled as to the fourth paragraph of appellees’ answer. In this fourth paragraph of answer, appellees admitted that Bernhard Henry Ruhlman died testate, and that John B. Ruhlman was duly appointed executor of his last will, and, as such, executed the bond, as set forth in the relator’s complaint; but they averred that, by the will of such testator, which was duly probated in Shelby county, Bernhard H. Ruhlman bequeathed to his widow, Susannah Ruhlman, all his personal property, money and notes; and that said Susannah Ruhlman was still living. Wherefore the relator had no interest in the matters in suit herein, and should not maintain this action, and appellees demanded judgment.
It is claimed by relator’s counsel, as we understand their argument, that this fourth paragraph of appellees’ answer is a plea in abatement, and that it was error to overrule the
It does not follow, however, by any means, that, if an answer in' abatement be pleaded with an answer in bar, it will be error to overrule a demurrer, for the want of sufficient facts, to such answer in abatement. Where an answer in abatement does not precede, but is pleaded with an answer in bar, the plaintiff should move the court to strike out or reject the answer in abatement, and it would be error, we think, to overrule such motion.,
In the case in hand, if the fourth paragraph of answer had been an answer in abatement, the court would have sustained the relator’s motion, we may well suppose, to strike out or reject such paragraph upon one or both of two grounds, namely: 1. Because the paragraph was not “supported by affidavit;” and, 2. Because it did not precede, but was pleaded with, an answer in bar of the action. Neither of these grounds, however, would have authorized the court to sustain the relator’s demurrer, for the want of sufficient facts, to the fourth paragraph of appellees’ answer, even if such paragraph were, in fact, an answer in abatement. Toledo Agricultural Works v. Work, 70 Ind. 253; Vail v. Rinehart, 105 Ind. 6.
But the fourth paragraph of answer was not a plea in abatement, b’ut was, on the contrary, an answer in absolute bar of the relator’s action. Without "controverting any of the allegations of the relator’s complaint, the appellees simply said in the fourth paragraph of their answer, the substance of which we have heretofore given, that the relator had no interest whatever, as heir at law or legatee of Bernhard Henry Ruhlman, deceased, in"the three promissory notes which were the subject-matter of this suit; but that,
It must be held, therefore, we think, that the fourth paragraph of appellees’ answer herein stated a good defence in bar of this action, and that the relator’s demurrer to such paragraph was correctly overruled.
2. Under the alleged error of the court, in overruling the relator’s motion for a new trial herein, his counsel claim that-the verdict of the jury, in appellees’ favor, was not sustained by sufficient evidence. This claim of counsel can not be maintained. Certainly, there is evidence in the record of this cause, which not only tends to sustain, but, as we think, very fully sustains, the verdict of the jury on every material point. It is not our province, as an appellate court, to weigh the evidence adduced by the parties respectively before the trial court and jury; but if it were, it would seem to us that the evidence appearing in the record fairly preponderates in favor of the appellees, and fairly sustains the verdict in their favor. Without conflict therein, the
If it were conceded, therefore, that the other evidence appearing in the record, without any conflict therein, showed conclusively that John B. Ruhlman, as executor of the last will of Bernhard Henry Ruhlman, deceased, had not only •collected all the money due oh the three promissory notes, which were the subject of the relator’s action, but had also, as charged, unlawfully converted such - money to his own private use, still, we could not disturb the verdict of the jury, nor reverse the judgment below, in favor of the appellees, upon the entire evidence given in the cause. Because, the facts stated in the fourth paragraph of answer having been shown to be true by uncontradicted evidence, it is very clear, we think, that the unlawful conversion of the moneys, so collected by such executor, did not affect the relator in any manner, or to any extent, nor give him any right of action upon the executor’s bond against the appellees herein. For, in such case, the testator’s widow, Susannah A. Ruhlman, was the real party in interest, and she alone had the right to complain of the unlawful conversion of the moneys so collected, or to maintain any action therefor or on account thereof.'
But the evidence wholly fails to show, as it seems to us, that the executor, John B. Ruhlman, had converted to his own use any of the moneys so collected by him on such three promissory notes. It is negatively shown that the
We pass by the rulings complained of, in relation to the competency of witnesses and evidence, because, in the view we have taken of this case, these rulings, even if erroneous (and they were not in our opinion), would not and could not authorize the reversal of the judgment.
The court did not err, we think, in overruling the relator’s motion for a new trial.
The judgment is affirmed, with costs.