117 Ind. 349 | Ind. | 1889
The appellant was the plaintiff and the appellee the defendant in the court below. The complaint is in three paragraphs.
Separate demurrers were addressed to the second and third paragraphs, the cause of demurrer being want of facts sufficient to constitute a cause of action. The demurrers were sustained and proper exceptions saved.
An answer in two paragraphs was filed, the first of which was the general denial.
A demurrer was addressed to the second paragraph of the answer, the cause of demurrer being want of facts sufficient to constitute a defence to the action. The demurrer was overruled and the proper exception saved.
A reply was then filed, in two paragraphs, the first paragraph being the general denial.
A demurrer was addressed to the second paragraph of reply, the cause of demurrer being want of facts sufficient to constitute a good reply to the answer. The demurrer was sustained and the proper exception saved. The appellee then withdrew the first paragraph of his answer, and the appellant the first paragraph of his reply, and the court rendered judgment for the appellee for want of a reply.
There are four errors assigned :
1. The court erred in sustaining the demurrer to the amended second paragraph of the complaint.
2. The court erred in sustaining the demurrer to the third paragraph of the complaint.
4. The court erred in sustaining the demurrer to the second paragraph of the reply.
The first paragraph of the complaint was a common count for money had and received by the. appellee for the use of the appellant, and as the facts alleged in the second and third paragraphs were provable under the first paragraph, it is probable that there is no available error because of the action of the court in sustaining said demurrers.
The second paragraph of the answer is as follows: “ Said defendant for further answer says that, at the April term, 1883, of the circuit court of Henry county, Indiana, the defendant herein, James W. Anderson, filed in said court his complaint in which he alleged that this plaintiff, on the 2d day of August, 1882, by his certain promissory note, promised to pay to the order of A. F. Yetter, December 25th, 1882, the sum of $150, with eight per cent, interest from date, and attorney’s fees, which said note the said Yetter endorsed in blank to the said Anderson, and alleging that said note was due and unpaid, and demanding judgment thereon for $200; that process was issued upon said complaint and served upon said Wright to appear in said court and answer said complaint; that said Wright appeared and filed his cross-complaint in words and figures as follows: ‘ The defendant for answer to said complaint says: 1st. That said note mentioned and set forth in plaintiff’s complaint was given to the plaintiff in part consideration for a tract of land sold and conveyed by the plaintiff, Anderson, to the defendant, James Wright, and that the defendant Yetter endorsed the same for the accommodation and as surety for said Wright only, and without other consideration ; that, at the time of the execution of the said mote and during his natural life prior thereto, the defendant, Wright, was very weak and feeble in mind, and not able to read or write or to comprehend the meaning and force of deeds, notes or other
It is contended by appellant that the pleading which he filed in the former action, and which is set out in the foregoing answer, was but an answer, while the appellee contends that it was a cross-complaint.
The pleading styles itself an answer, and the appellee, in his answer, calls it an answer, but to determine its character we must look at its substance, and not at the name given to it.
It was something more than an answer, otherwise the appellant would only have been entitled to such relief under it as would have barred a recovery in the action. It concludes with a prayer for affirmative relief, and the court granted affirmative relief.
The pleading was what' is styled and recognized by the statute as a counter-claim.
“A counter-claim is any matter arising out of or connected
The matters alleged in the pleading were connected with the cause of action, and might have been the subject of an action in favor of the appellant.
The theory of the appellee's answer is, that, the appellant having filed a -pleading in response to the complaint, in which he sought and obtained affirmative relief, the adjudication bars a recovery in the present action, as the subject-matter of the action arises out of the same transaction as did the subject-matter of the former action.
An adjudication once had between the parties bars and cuts off all future litigation, not only as to what was actually litigated and determined, but as to all matters that might have been litigated and determined in the action. This is the established doctrine of this court from the beginning. Fischli v. Fischli, 1 Blackf. 360 ; Richardson v. Jones, 58 Ind. 240; Elwood v. Beymer, 100 Ind. 504; Vail v. Rinehart, 105 Ind. 6; Kurtz v. Carr, 105 Ind. 574; Wilson v. Buell, ante, p. 315.
These authorities, however, must be understood as having reference to such matters as are within the issues. Columbus, etc., R. R. Co. v. Watson, 26 Ind. 50; Davenport v. Barnett, 51 Ind. 329; Sauer v. Twining, 81 Ind. 366; Stringer v. Adams, 98 Ind. 539 ; Moore v. State, ex rel., 114 Ind. 414.
There is another class of cases to which the doctrine of merger is applied, and when an action is once brought, tried and determined, all causes of complaint are forever cut off, whether embraced within the issues or not. Freeman Judgments, sections 240 and 372 ; Henderson v. Henderson, 3 Hare, 100; City of North Vernon v. Voegler, 103 Ind. 314; Richardson v. Eagle Machine Works, 78 Ind. 422 (41 Am. R. 584).
This is a class of cases where the gravamen of the action
But in the case under consideration we do not think the cause of action was embraced within the issues in the former action; nor are we of the opinion that there was a merger. The counter-claim charged a fraud, and demanded a rescission of the contract because of the fraud.
To a complete 'rescission of the contract the cause of action involved in this suit was in no way material. The right of rescission depended entirely upon the fraud charged, and the offer to put the appellee in statu quo. Until the contract was rescinded by a decree of the court, the appellant could not enforce collection of the money now sued for.
The right of rescission was an equitable right, but the right which the appellant now seeks to enforce is a legal right.
As all distinctions between law and equity are abolished by our code of practice, the appellant might have made the allegations of his counter-claim broad enough to have enabled him to recover the'money he now sues for in the former action, but he was not required to do so.
The right of action involved in this suit was in no way before the court in the former action, and, under the issues, could not have been considered and determined.
The second paragraph of the answer was clearly bad, and the court should have sustained the demurrer to it.
As the answer is bad we are not called upon to consider the reply.
The judgment is reversed, with costs, with directions to the court below to sustain the demurrer to the second paragraph of answer.