Bush v. McBride

65 N.E. 1026, 159 Ind. 663, 1903 Ind. LEXIS 26

• Court: Indiana Supreme Court
• Decided: January 13, 1903
• Docket: No. 20,015
• Status: Published

Opinion

Monks, J.

Appellee brought this action to recover judgment on a promissory note executed by appellant William H. Bush, and to foreclose a mortgage on real estate executed by Bush and wife to secure said promissory note. Appellant Nathan Miller who had possession of a part of the real estate described in said mortgage as receiver, and who was sued by permission of the court in which he was appointed, was made a defendant to said action. Bush and wife and said receiver each filed a demurrer for want of facts to the complaint, which was overruled. Said appellants refusing to plead over, judgment was rendered foreclosing said mortgage against all of them and against said Bush on said promissory mote.

Appellants Bush and wife, and Miller, receiver, jointly assign for error “that the court erred in overruling the demurrer to the complaint.”

It is insisted by said appellants that the complaint was not sufficient to entitle appellee to a foreclosure of said mortgage. It is clear, however, that the allegations of the complaint were'sufficient to entitle appellee to recover judgment against William IT. Bush on the note sued upon. As said joint assignment of errors is not good as to all the appellants joining therein, it is not available. Ewbank’s Manual, §138, and cases cited; Green v. Heaston, 154 Ind. 127, 130, and cases cited; Doty v. Patterson, 155 Ind. 60, 61; Sheeks v. State, ex rel., 156 Ind. 508, 509, and cases cited; M. A. Sweeney Co. v. Fry, 151 Ind. 178, 181.

Finding no available error in the record, the judgment is affirmed.