Harness v. Ross

41 N.E. 1065, 13 Ind. App. 575, 1895 Ind. App. LEXIS 289

• Court: Indiana Court of Appeals
• Decided: November 21, 1895
• Docket: No 1,808
• Status: Published

Opinion

Davis, J.

This action was instituted by the appellee

against the appellant before a justice of the peace. Erom the judgment rendered by the justice, an appeal was prosecuted to the circuit court. In the circuit court the appellee filed an amended complaint. The appellant answered in four paragraphs. On motion of the appellee the fourth paragraph of the answer was stricken out. A trial by a jury resulted in.a verdict and judgment against the appellant, from which this appeal is prosecuted.

Filed November 21, 1895.

The only error assigned in this court is that the court,, erred in sustaining the motion to strike out the fourth paragraph of the answer to the amended complaint.

It is conceded by counsel for the appellant that the fourth paragraph of the answer was not a plea in abatement. If the answer is properly in the record it is apparent that it does not attempt to plead as a defense either set-off or the statute of limitations. Therefore the matter of defense therein pleaded might have been given in evidence without plea. Section 1528, R. S. 1894.

Counsel for appellee contend that no question is presented by the record for our consideration. The fourth paragraph of the answer has not been made a part of the record by bill of exceptions or an order of court. Counsel therefore insist that when the answer was stricken out by the court it no longer formed a part of the record of the case, and that the act of the clerk in copying the stricken out paragraph into the transcript does not make it a part of the record. This position is supported by the authorities. Carrothers v. Carrothers, 107 Ind. 530.

There is no error in the record.

Judgment affirmed.