Main v. Field

40 N.E. 1103, 13 Ind. App. 401, 1895 Ind. App. LEXIS 259
CourtIndiana Court of Appeals
DecidedJune 4, 1895
DocketNo. 1,510
StatusPublished
Cited by3 cases

This text of 40 N.E. 1103 (Main v. Field) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Main v. Field, 40 N.E. 1103, 13 Ind. App. 401, 1895 Ind. App. LEXIS 259 (Ind. Ct. App. 1895).

Opinions

Reinhard, C. J.

-Action- by the appellee against the appellant to recover money alleged to have been collected by the appellant in violation of an injunction granted by the Floyd Circuit Court. The complaint is in two paragraphs. The first paragraph was a common [403]*403count for money liad and received, and the second contained a statement of the facts relied upon for a recovery. The appellant has assigned as errors :

1. That the first paragraph of the complaint is insufficient to constitute a cause of action.
2. That the second paragraph is insufficient to constitute a cause of action.
3. That the court erred in overruling the demurrer to the complaint.
4. That the court erred in overruling the demurrer to the second paragraph of the complaint.
5. 6 and 1. That the court erred in sustaining the demurrers to the second, third and fourth paragraphs of the answer.
8. That the court erred in sustaining the appellee’s motion to strike out the fifth paragraph of the answer.
9. That the court erred in overruling the motion for a new trial.

Appellant’s counsel say: “The court will observe that when the demurrer was filed to the complaint it then consisted of only one paragraph, the second paragraph being filed afterward.” In this statement counsel are not sustained by the record. The latter shows that after the second paragraph of the complaint had been filed the appellant filed his demurrer to the complaint. Eor this reason, if the complaint was sufficient as to either paragraph, the demurrer for want of facts would have to be overruled. This has been so often decided that the citation of authorities is unnecessary. Moreover, the only cause of demurrer assigned is that there was a misjoinder of causes of action. It is not now insisted that two causes were improperly united, but the error relied upon is that the first paragraph is insufficient. But if the appellant had properly “discussed” the question, it would not he available to him, for the [404]*404reason that if error had been committed it would not be reversible. R. S. 1894, section 344 (R. S. 1881, section 341); Carnahan v. Chenoweth, 1 Ind. App. 178.

Neither does the assignment of error that the complaint fails to state facts sufficient to constitute a cause of action entitle the appellant to have each paragraph considered separately. Such an assignment, like a demurrer addressed to the whole complaint, tests the latter only as an entirety, and if there is a single good paragraph in the pleading the whole will stand. It is not contended, in connection with this branch of the case, that the second paragraph is bad.

This disposes of the first, second, and third assignments of errors. The fourth assignment calls in question the sufficiency of the second paragraph of the complaint, the same having been attacked separately by demurrer.

The.second paragraph of the complaint, omitting the mere formal parts, is as follows:

“That on and before the 14th day of February, 1887, he (the said plaintiff) was and ever since has remained a resident householder of the city of Jeffersonville, in the county of Clark, in the State of Indiana, keeping house, and residing with his family as the head thereof; that on said 14th day of February, 1887, he was indebted to the defendant in the sum of two hundred and thirty-two dollars and fifty rfive cents, for goods and merchandise sold and delivered by the defendant to him, evidenced by the promissory note of the plaintiff, bearing date of June 4, 1884, payable sixty days thereafter to the order of the defendant; that he was not indebted to the defendant on any other account or demand whatever, and that he was on said 14th day of February, 1887, and ever since has been, unable for want of means to pay the said debt and note, or any part thereof; [405]*405that on said 14th day of February, 1887, the total value of all the property, real and personal, owned by the plaintiff within and without the State of Indiana, together with all bis cash on hand and on deposit within and without the State of Indiana, rights, credits, and choses in action belonging to him or in which he had any interest did not exceed the sum of five hundred dollars in amount, and that the total value of all the property, moneys, rights, credits, and choses in action so owned and held by the plaintiff, and in which he had any interest, did not at any time between said 14th day of February, 1887, and the date of the grievances hereinafter set forth exceed in amount the sum of five hundred dollars; that being such resident householder, the said plaintiff had at the dates aforesaid, ever since has had, and yet has the right to claim, and was and is entitled to hold and have set off to him all of his said property, real and personal, moneys, rights, credits, and choses in action as wholly and entirely exempt from levy and sale upon execution, attachment, or garnishment, upon any and all claims of his creditors founded upon contracts, and. especially against the said claim of the defendant upon said note; that on said 14th day of February, 1887, the defendant was, and for ten years before that had been, and ever since has remained, a citizen and resident of the said county of Floyd, and had notice of the straightened circumstances of the plaintiff and of his inability to pay said debt and claim without distressing his (said plaintiff’s) family, but that on said 14th day of February, 1887, the defendant, with the intent thereby to deprive the plaintiff of his lights under the statutes of the State of Indiana on the subject of exemption of property from levy and sale on execution, or in attachment and garnishment, and for the purpose of seizing upon and garnishing the wages of [406]*406the plaintiff coming to him from the Pennsylvania Company, a railroad corporation for whom the plaintiff was then and there working, and by which he was employed in the State of Kentucky, where said company had an office and divers agents and officers, and where said company owned real and personal property of the value of one million dollars, removed his said claim out of the State of Indiana and commenced an action on said note against the plaintiff in the Louisville Law and Equity Court, in the city of Louisville, in the county of Jefferson, and State of Kentucky, and in connection with the said action, and in aid thereof, the said Reuben P. Main then and there commenced and prosecuted a proceeding in attachment and garnishment against this plaintiff and against his property, wages and earnings in the hands of, and held and owing to him by, said Pennsylvania Company, and that a writ of garnishment was by said Main sued out in said action against the said Pennsylvania Company, and' was on said day duly served upon the said corporation; that at the time of the commencement of the said action and the service of the said writ of garnishment upon said Pennsylvania Company, the said corporation was indebted to this plaintiff in the sum of seventy-five dollars, being the amount of one month’s wages due to him; that at the time of the commencement of the said action and proceeding in garnishment by the said Main against this plaintiff in the said law and equity court, he (the said plaintiff) was then and there, and the said defendant, Reuben P.

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Cite This Page — Counsel Stack

Bluebook (online)
40 N.E. 1103, 13 Ind. App. 401, 1895 Ind. App. LEXIS 259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/main-v-field-indctapp-1895.