33 Ind. 443 | Ind. | 1870
Lead Opinion
This case presents a number of questions of practice.
The appellant relies on Bradley v. The Bank, 20 Ind. 528. That case only decides that after a trial it is too late to object that the answer was not verified. We are not aware of any reported case involving the precise point before us, and the industry of counsel has not discovered any. It may happen in the hurry of business in the lower courts (though it should not), that the verification is forgotten by the pleader, and its absence overlooked by his antagonist. The law has no inclination to favor dilatory pleadings, for they do not go to the merits of the ease. But it would be trifling to allow a party to speculate upon the result of a verdict, and, after it is found against him, interpose the objection that the answer was not verified. But when no step has-been taken beyond swearing the jury, no great inconvenience can result, nor any injury to the opposite party, by allowing the objection to be made. He can at once interpose an application for leave to add the verification, and thus protect himself and save his answer. We are, however, of opinion that the better practice would be to refuse to hear the objection after the jury has been sworn; but inasmuch as the error, if any, was harmless, it is not available in this court.
2. After the answer in abatement had been stricken out, as above stated, the appellant asked leave to supply the verification, but was refused; and this is complained of. He was too late in this application, after the pleading had been stricken from the record. It was then out, and could not be brought back by an affidavit.
3. It is urged that there was error in not reswearing the jury after this pleading was stricken out. There is nothing in this. No single issue had been changed, and no new one had been formed. One issue, existing when the jury was sworn well and truly to try all the issues, had been stricken out, but the oath which had been taken embraced each of
4. The witness Hanna was allowed to testify, over the appellant’s objection, as to what was meant by his bid in writing. This was error; but it was harmless, for the reason that the writing itself very plainly meant just what the witness swore that he intended by it,'and was not, under the law, susceptible of any other construction, as we think. See 3 Stats. (Davis), 99 sec. 69.
5. The appellee was allowed to state as a witness the price which he had actually paid for the lot. This was error; for the appellant had not introduced any evidence whatever which tended to raise any question upon the subject. The tendency of this item of evidence would be to elicit the sympathies of the jury in behalf of the appellee; and so, unless it affirmatively appears that a right result was, beyond question, reached by the verdict, this will reverse the judgment.
6. The precept upon which the lot was sold for the unpaid assessment was issued upon an affidavit of the contractor stating that the work was done according to contract, and that, under the estimate made by the city engineer, eighty-three dollars and eighty-four cents was assessed against this lot, and the owner, for the space of twenty days after the date of the estimate, had failed and refused, and still refused, to pay the same, except the sum of sixty dollars, which he had paid. The bid of the contractor for grading the street was one dollar per foot, and at that price it was contracted, and the work done. This would of course impose an assessment of only fifty cents per front foot upon the property upon each side of the street. The front of this lot was only eighty-two and one-half feet, and the sum for which it was liable could only be forty-one dollars and twenty-five cents, all of which, and nearly twenty dollars more, had been paid when the precept issued, as appeared by the affidavit. All this information was before the council when the precept was ordered, and by law they and the contractor as well must
Affirmed, with costs.
Rehearing
We are satisfied with the conclusion arrived at by the late court, that the judgment helow should be affirmed, and, therefore, that the petition for rehearing should be overruled; but we are not quite satisfied that the same strictness should be applied to sales made for improvement of streets, &c., under the authority of municipal corporations, that is required in sales for taxes, as is intimated in the original opinion in this cause.
We think the sale made under the circumstances shown in the record, and stated in the original opinion, was a nullity; but we think that conclusion may be well maintained without resorting to the extreme strictness usually applied to tax sales.
A rehearing, however, is pressed more especially upon the ground that the court is supposed to have overlooked, or not fully considered, a- question arising upon the. introduction of evidence.. The defendant below, on the trial, offered evidence tending to show that a prior action was pending between the same parties (they being reversed), involving the same cause. The evidence was excluded. There wms no plea in abatement under which the evidence could have been given, and the question presented is, whether it could have been given under the general denial. The statute applicable to actions for the recovery of real estate and for quieting the title thereto provides, that “the answer of the defendant shall contain a denial of each material statement or allegation in the complaint; under which denial the defendant shall be permitted to give in evidence every defense to the action that he may have, either legal or equitable.” 2 G. & H. 283.
If the words “ every defence to the action, * * either legal or equitable” are to be construed as embracing matters of abatement, as well as matters in bar, then, of course, the court below erred in excluding the evidence. But we think the language employed does not embrace matters of
This construction is not only, right in, itself, but it;is-necessary to preserve harmony in-the practice in- reference-to pleading matters of abatement. It has been held that sec. 200, p. 706, R. S. 1843, requiring pleas in abatement to-be sworn to without exception, is continued in force. The Indianapolis, &c., R. W. Co. v. Summers, 28 Ind. 521. No-good reason occurs to us why matters in-abatement of actions-of this character should not be pleaded, and sworn to, as-well as in other actions. We suppose the legislature-intended, by the provision, above quoted, to assimilate this-, class of actions to the old action of ejectment, in which the general issue was pleaded,, and under which; all legal; matters in bar could be given in evidence,, but. not matters-of' abatement; enlarging the common, law right of defense, however, by permitting equitable as well- as legal! defenses., to be thus given in evidence under-the-generabdeniah
The petition for rehearing-is-overruled;
