Troutner v. Parent

Indiana Supreme Court

Troutner v. Parent

4 Ind. 232, 1853 Ind. LEXIS 78

DecidedJune 6, 1853

StatusPublished

This text of 4 Ind. 232 (Troutner v. Parent) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Troutner v. Parent, 4 Ind. 232, 1853 Ind. LEXIS 78 (Ind. 1853).

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Opinion

Davison, J.

This was an action of debt by Parent against Troutner, Golerick, and Dawson, on an injunction bond. The bond is in the sum of 100 dollars, conditioned as follows: Whereas the above-named Troutner, at the July term of the Allen Circuit Court, filed his bill in chancery, praying an injunction against the said Parent, which injunction was on that day granted by the judges of said Court in open Court; now if the said Troutner shall well and truly pay to the said Parent all damages and costs which may accrue in consequence of said proceeding, provided the said injunction granted in this case shall be dissolved, then the above obligation is to be void and of none effect; otherwise to be and remain in full force, &c.

The breach assigned is, that at the July term of the said Allen Circuit Court, in the year 1845, by the judgment and decree of said Court, the said injunction was dissolved and said bill dismissed, as appears of record, &c.

Golerick and Dawson were defaulted. Parent obtained oyer of the bond and condition, and filed two pleas: 1. Non est factum. 2. Performance generally. A demurrer to each plea was sustained, a writ of inquiry awarded, damages assessed, and judgment rendered for the plaintiff below.

The only error assigned is the sustaining of the demurrer to the pleas.

The defendant in error contends that the pleas are defective, because they are the separate pleas of Troutner; that in actions founded upon a joint or joint and several contract, co-defendants cannot sever in their pleas. We think this is a mistake. The rule seems to be, that when the defence is in its nature joint, several defendants may join in the same plea, or they may sever. And one defendant may plead in abatement, another in bar, and another may demur. 1 Chitty’s Pl. 596.—Archbold’s Civil Pl. 239.—Gould on Pl. 422, s. 6.

The pleas are, no doubt, both good on general de[234]*234murrer; and in our opinion, the decision of the Court was erroneous.

J. G. Walpole, for the plaintiffs. II. Cooper, for the defendant.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.

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Davison, J.

This was an action of debt by Parent against Troutner, Golerick, and Dawson, on an injunction bond. The bond is in the sum of 100 dollars, conditioned as follows: Whereas the above-named Troutner, at the July term of the Allen Circuit Court, filed his bill in chancery, praying an injunction against the said Parent, which injunction was on that day granted by the judges of said Court in open Court; now if the said Troutner shall well and truly pay to the said Parent all damages and costs which may accrue in consequence of said proceeding, provided the said injunction granted in this case shall be dissolved, then the above obligation is to be void and of none effect; otherwise to be and remain in full force, &c.

The breach assigned is, that at the July term of the said Allen Circuit Court, in the year 1845, by the judgment and decree of said Court, the said injunction was dissolved and said bill dismissed, as appears of record, &c.

Golerick and Dawson were defaulted. Parent obtained oyer of the bond and condition, and filed two pleas: 1. Non est factum. 2. Performance generally. A demurrer to each plea was sustained, a writ of inquiry awarded, damages assessed, and judgment rendered for the plaintiff below.

The only error assigned is the sustaining of the demurrer to the pleas.

The defendant in error contends that the pleas are defective, because they are the separate pleas of Troutner; that in actions founded upon a joint or joint and several contract, co-defendants cannot sever in their pleas. We think this is a mistake. The rule seems to be, that when the defence is in its nature joint, several defendants may join in the same plea, or they may sever. And one defendant may plead in abatement, another in bar, and another may demur. 1 Chitty’s Pl. 596.—Archbold’s Civil Pl. 239.—Gould on Pl. 422, s. 6.

The pleas are, no doubt, both good on general de[234]*234murrer; and in our opinion, the decision of the Court was erroneous.

J. G. Walpole, for the plaintiffs. II. Cooper, for the defendant.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.

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Bluebook (online)

4 Ind. 232, 1853 Ind. LEXIS 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/troutner-v-parent-ind-1853.