Hereth v. Smith

33 Ind. 514

• Court: Indiana Supreme Court
• Decided: July 1, 1870
• Status: Published

Opinion

Worden, J.

This was an action by Mary Smith against ithe appellants upon a promissory note .executed by the latter to one S. B. Hartman and by liim indorsed to the plaintiff. Issue, trial, verdict, and judgment for the plaintiff for the amount of the' note and interest. The record does not contain the evidence, or the instructions given, or those -refused. There is no question before us properly, except that arising upon the fourth paragraph of the answer, to which a demurrer was sustained and exception taken. That paragraph is as follows: '

“And for a further answer herein, the said defendants Hereth and Eangsdale say that they admit the execution of the note in the -said complaint mentioned, but they say that the plaintiff ought not to have and maintain said action herein against them, because they say that said plaintiff is not the real plaintiff [party] in interest; that she has no interest whatever in said note, and that said note belongs to one --. “Wherefore defendants pray judgment for costs,” &c.

All pleadings in bar of an action resolve themselves into two classes, viz.: those in denial, and those by way of confession and avoidance. The above paragraph can hardly bo held good as a' denial of the cause of action, for the reason that it does not controvert or deny any allegation of the complaint. It expressly admits the making of the note, and does not deny the indorsement thereof to the plaintiff, as alleged in the complaint. Regarded as an answer by way of confession and avoidance, it must be taken to admit expressly or impliedly the making of the note and the indorsement thereof to the plaintiff, as alleged in the complaint; and admitting those facts, the inquiry arises, what new facts are alleged in avoidance of the legal effect of the facts thus admitted ? It alleges that the plaintiff" is not the real party in intei’est, &c.

The legal qualities of the answer will not bo changed, but may be illustrated, by putting it in this wise: The defendants admit the making of the note, and that it was duly indorsed to the plaintiff by the payee thereof, as alleged in the complaint; but still they say she does not own it, but, on tbe contrary, it belongs to some one else, and sbe is not tbe real party in interest. But if tbe note was thus endorsed to tbe plaintiff, wby does sbe not own it? wby is sbe not tbe real party in interest? and how did it become tbe property of some one else? The pleading fails to answer any of these queries, or to state any facts from which the assumptions are drawn. No new facts whatever are stated that avoid the legal effect of tbe facts thus admitted. That such pleading is bad needs tbe citation of no authorities, but for convenience of reference we cite tbe following; Garrison v. Clark, 11 Ind. 369; Elder v. Smith, 16 Ind. 466; Raymond v. Pritchard, 24 Ind. 318; Lewis v. Sheaman, 28 Ind. 427.

J. E. McDonald, A. L. Roache, E. M. McDonald, J. M. Butler, P. W. Bartholomew, A. G. Porter, B. Harrison, and W. P. Fishback, for appellants. F. Rand and R. H, Hall, for appellee.

The judgment below is affirmed, with two per cent, dam - ages and costs.