Hopkins v. Organ

15 Ind. 188, 1860 Ind. LEXIS 345

• Court: Indiana Supreme Court
• Decided: December 5, 1860
• Status: Published

Opinion

Worden, J.

Suit by Organ, against the appellants, to recover rent due upon a written lease of certain premises. The lease was made by, and the rent payable to, William D. Parker. The agreement for the payment of rent was assigned in-writing by Parker, to one Benjamin P. Walker, and by the latter it was, in the same manner, assigned to the plaintiff, Orga/n. One of the defendants, James O. Hopkins, demurred to the complaint, and assigned for cause, amongst other things, that there was a defect of parties defendant. The demurrer was overruled, and he excepted. The other defendants answered, as did also James G., after the overruling of his demurrer, and such further proceedings were had, as that final judgment was rendered for the plaintiff, against all the defendants. The only error complained of, is the ruling of the Court upon the demurrer of James G,., one of the defendants.

The assignment of the instrument sued on not operating as a transfer of the legal title thereto, both Parker and Walker were necessary parties defendant. Mewherter v. Price, 11 Ind. 199. It follows, that the demurrer should have been sustained, as it pointed out specially the defect. But this error does not require a reversal of the judgment as to all the defendants. The other defendants did not make the objection, either by way of demurrer or answer, and as to them, it was waived. Code, § 54. A judgment may be reversed as to a part of the defendants, and affirmed as to the others. Kuntz v. Bright, 12 Ind. 313; Cutchen v. Coleman, 13 Ind. 568.

Per Ouriam.

The judgment below, as against James G. Hopkins, is reversed, with costs : as to the other defendants, it is affirmed.

M. K. Farrand and J. A. Liston, for appellants. J. Bradley and D. J. Woodward, for appellee.