29 Ind. 315 | Ind. | 1868
Suit by Treadway, administrator of William <G. Statelar, -deceased, against Sehloss, administrator of Andrew Sample, deceased. A demurrer was sustained to the complaint because it did not state sufficient facts to constitute a cause of action, and judgment for the defendant. Treadway excepted to the ruling of the court, and appeals.
The allegations of the complaint are as follows: “ The plaintiff, Milton Treadway, administrator of the estate of William O. Statelar, deceased, complains of defendant Moses A. Sehloss, administrator of the estate of Andrew Sample, deceased, and says that on the-day of-, 186-, -one Joseph JE. Mitchell filed in this court a pretended claim against the estate of said Statelar; that the claim was not allowed by plaintiff’, and the same was put upon the issue docket for trial at the July term, 1865, of this court; that at said term, said Mitchell made a false and pretended transfer of said claim, pendente lite, to Andrew Sample, not for the purpose of vesting the title to said claim, or the proceeds thereof, in him, but for the purpose of its appearing upon the docket that Sample was the owner thereof, and thereby to enable said Mitchell to testify as a witness in his own behalf. Plaintiff' avers that he had no knowledge at the trial but that said Sample was the real owner of said claim. Said claim came on for trial in this court at the July term, 1865, and at said trial said Mitchell and Sample were sworn and examined as witnesses in said cause; and said Mitchell and Sample corruptly confederated together for the purpose of defrauding the estate of said. Statelar by getting said claim
The complaint is a novel one. It does not conform to any provision of the statute authorizing the granting of new trials, nor is a new trial asked. It does not contain the /requisite statements of a complaint for a review. Indeed, it is not claimed by the appellant’s counsel that it was intended either as a proceeding for a review or a new trial; but it is claimed to be an original complaint to vacate the judgment for fraud, based on the broad principles of equity. It does not state the substance, character or nature of the
"We think the court did right iix sustaining the demurrer, and the judgment must therefore be affirmed.
The judgment is affirmed, with costs, to be levied of the property of the decedent, &c.'