Hicks v. Reigle

32 Ind. 360

• Court: Indiana Supreme Court
• Decided: November 15, 1869
• Status: Published

Opinion

Ray, J.

Complaint by appellee on a note. Answer in two pai’agraphs, first, a denial of the execution of the note in manner and form as alleged; this was not sworn to; second, that said note was given wholly without consideration, A demurrer was filed to the answer, which assigned no cause as required by statute, but which was sustained by the court. ' A trial was had, and finding for the appellee. Motion for a new trial on the ground that the court erred in sustaining the demurrer. This was no ground for a new trial. The court, however, granted the motion, and a new trial was had, resulting still in faVor of the appellee. A motion was made for a new trial; first, on the ground that the finding was contrary to law; second, that the trial was had without an issue joined between the parties. "Which motion was overruled.

li. H. Milroy and J. JEL. Gould, for appellant.

This was not error. The court having sustained a demurrer “ to the answer,” there was nothing left but to assess the damages. The granting of a new trial did not reverse the action of the court on the demurrer, or reinstate the answer.

The error in ruling upon the demurrer is also assigned. Clearly, a demurrer with no cause assigned should be stricken from the files. It was error to sustain it. The first para: graph was good so far as' to require the production of the note. The second was a good denial of any consideration for the note. The demurrer should have been overruled, if not stricken from the files.

Judgment reversed back to the filing of the demurrer, with costs, and cause remanded for further proceedings in accordance with this opinion.