State ex rel. the Board of Commissioners v. Clark

9 Ind. 241

• Court: Indiana Supreme Court
• Decided: June 4, 1857
• Status: Published

Opinion

Gookins, J.

On the 27th day of February, 1855, the state, on the relation of the board of commissioners of Daviess county, commenced a suit against Clark, Brand, and Waller, as sureties of one Cole, on the official bond of Cole, as surplus revenue agent for said county, dated in 1841.

Three breaches were assigned: 1. That the said Cole had received certain moneys belonging to that fund, which he failed to pay over to the school commissioner as required by law, and died. 2. That he received moneys of said fund, which he converted to his own use. 3. That he loaned moneys from said fund without taking the requisite security therefor, whereby the same became lost.

The defendants, Clark and Waller, answered — 1. That the cause of action did not accrue within three years next before the commencement of the suit. 2. By a special denial of the facts stated in the second breach, and of a portion of those stated in the first and second. 3. By a special denial of the facts alleged in the third breach. 4. The fourth is in the form of a general plea of performance. 5. The fifth denies all the allegations in the complaint.

No answer was put in for Brand, and, as to him, no disposition seems to have been made of the cause.

The plaintiff demurred to the answer in the following form:

“ The plaintiff demurs to the defendants’ answer for the following grounds of objection: 1. That the first paragraph of the defendants’ answer does not state facts sufficient to constitute a defense. 2. That the second paragraph of said answer does not state facts sufficient to constitute a defense, and that said answer attempts to state more than one ground of defense in the same paragraph. 3. That the third, fourth, and fifth paragraphs of the defendants’ answer do not state facts sufficient to constitute a defense to the plaintiff’s complaint.”

The Court overruled the demurrer, and the plaintiff failing to answer over, there was judgment for the defendants, from which the plaintiff appeals.

The error assigned is the sustaining of the demurrer to the paragraph of the answer relying upon the statute of limitations.

In a similar case between the same parties, we have decided that the statute was not' a good bar. 7 Ind. R. 468.

But the appellees insist that the demurrer is to the entire answer; and that if there was one good defense, it was rightly overruled.

The position contended for is undoubtedly correct, that if a party demurs to the whole of a declaration containing several counts, and there is one good count; or to several pleas, and there is one good plea, the demurrer should be overruled; and accordingly the decision of the Court was right upon this demurrer, so far as it was addressed to the second, third, fourth, and fifth paragraphs of the answer. Lane v. The State, 7 Ind. R. 426.

But we do not think the demurrer in this case should be regarded as coming within the rule. The spirit of the code is, that parties shall be required to place upon the record the particular grounds upon which they rely, in raising issues whether of law or fact. A complaint, therefore, may be general, provided a bill of particulars, or copy of an instrument declared on accompanies it. Ellis v. Miller, at the present term

(1). That removes all uncertainty, and makes the allegations specific. So a demurrer may be general, if it assign specific causes.

Lane v. The State, and the case before us may, perhaps, be distinguished in this: there, the plaintiff demurred jointly to three paragraphs of an answer, assigning for cause, that they were insufficient in law to constitute a legal defense to the action: while here, the plaintiff demurs to the answer substantially in the same manner, but assigns the causes separately, thus — “the first paragraph does not state facts sufficient to constitute a defense,” &c. This was certainly sufficient to enable the Circuit Court to pronounce a judgment separately upon the sufficiency of that defense. As to that, the demurrer should have been sustained.

S. Judah, for the state. D. M’Donald^ for the appellees.

Per Curiam.—

The judgment is reversed with costs. Cause remanded with instructions to the Circuit Court to sustain the demurrer to the first paragraph of the defendants’ answer, and for further proceedings not inconsistent with this opinion.

Ante, 210.

) Counsel for the state cited Winston v. McCormick, 1 Ind. R. 56.

) Counsel for the appellees cited, on the point touching demurrer, Harrison v. M’Intosh, 1 Johns. 380; Sevey v. Blacklin, 2 Mass. R. 541; Cuyler v. Trustees, 12 Wend. 165; and to the point that the filing of the declaration is not the commencement of the action, Clark v. Redman, 1 Blackf. 379; Underwood v. Tatham, 1 Ind. R. 276; 3 Johns. Cas. 145; 2 R. S. p. 35. To these may be added The State v. Clark, 7 Ind. R. 468.