Bailey v. Wilson

Indiana Court of Appeals

Bailey v. Wilson

91 N.E. 249, 45 Ind. App. 571, 1910 Ind. App. LEXIS 221

CourtIndiana Court of Appeals

DecidedMarch 16, 1910

DocketNo. 7,850

StatusPublished

This text of 91 N.E. 249 (Bailey v. Wilson) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bailey v. Wilson, 91 N.E. 249, 45 Ind. App. 571, 1910 Ind. App. LEXIS 221 (Ind. Ct. App. 1910).

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Opinion

Comstock, J.

Appellee filed his amended complaint in this cause against appellant who is the administrator of the estate of Jehu Miller, deceased, for breach of contract arising out of the sale of the right to use in Lucas county, Ohio, a certain patent for the construction of cisterns. This contract was executed by decedent and the plaintiff, on August 18, 1905.

A demurrer for want of facts was overruled to the complaint and an exception taken. Defendant stood upon the general denial which the law puts in as to claims against estates. The cause was submitted to a jury for trial, which resulted in a verdict against defendant for $500. Defendant’s motion for n new trial was overruled and an exception [572]*572taken. Plaintiff filed a remittitur for all except $350, and judgment was rendered for that amount.

The first and second specifications of error challenge the sufficiency of the complaint, and the third, the action of the court in overruling appellant’s motion for a new trial.

It is urged in behalf of appellee that, for various reasons-, no question is presented as to the sufficiency of the complaint or the overruling of appellant’s demurrer thereto, but, without considering this point, we have read the complaint and find that it contains a definite statement of appellee’s claim, the amount thereof, and enough to bar another action therefor, and that, as a statement of a claim against an estate, it is sufficient. King v. Snedeker (1894), 137 Ind. 503; Miller v. Eldridge (1891), 126 Ind. 461; Hileman v. Hileman (1882), 85 Ind. 1; Christian v. Highlands (1903), 32 Ind. App. 104. In the case of Bailey v. Miller (1910), ante, 475, the sufficiency of the complaint was not passed upon, but substantially the same questions upon the merits of the controversy were decided which are sought to be presented in this appeal; and upon the authority of that ease the judgment is reversed, with instructions to sustain appellant’s motion for a new trial.

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Comstock, J.

Appellee filed his amended complaint in this cause against appellant who is the administrator of the estate of Jehu Miller, deceased, for breach of contract arising out of the sale of the right to use in Lucas county, Ohio, a certain patent for the construction of cisterns. This contract was executed by decedent and the plaintiff, on August 18, 1905.

A demurrer for want of facts was overruled to the complaint and an exception taken. Defendant stood upon the general denial which the law puts in as to claims against estates. The cause was submitted to a jury for trial, which resulted in a verdict against defendant for $500. Defendant’s motion for n new trial was overruled and an exception [572]*572taken. Plaintiff filed a remittitur for all except $350, and judgment was rendered for that amount.

The first and second specifications of error challenge the sufficiency of the complaint, and the third, the action of the court in overruling appellant’s motion for a new trial.

It is urged in behalf of appellee that, for various reasons-, no question is presented as to the sufficiency of the complaint or the overruling of appellant’s demurrer thereto, but, without considering this point, we have read the complaint and find that it contains a definite statement of appellee’s claim, the amount thereof, and enough to bar another action therefor, and that, as a statement of a claim against an estate, it is sufficient. King v. Snedeker (1894), 137 Ind. 503; Miller v. Eldridge (1891), 126 Ind. 461; Hileman v. Hileman (1882), 85 Ind. 1; Christian v. Highlands (1903), 32 Ind. App. 104. In the case of Bailey v. Miller (1910), ante, 475, the sufficiency of the complaint was not passed upon, but substantially the same questions upon the merits of the controversy were decided which are sought to be presented in this appeal; and upon the authority of that ease the judgment is reversed, with instructions to sustain appellant’s motion for a new trial.

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Bluebook (online)

91 N.E. 249, 45 Ind. App. 571, 1910 Ind. App. LEXIS 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-wilson-indctapp-1910.

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