Wells & Nellegar Co. v. Short

Indiana Court of Appeals

Wells & Nellegar Co. v. Short

97 N.E. 183, 49 Ind. App. 296, 1912 Ind. App. LEXIS 176

CourtIndiana Court of Appeals

DecidedJanuary 25, 1912

DocketNo. 7,491

StatusPublished

This text of 97 N.E. 183 (Wells & Nellegar Co. v. Short) 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

Wells & Nellegar Co. v. Short, 97 N.E. 183, 49 Ind. App. 296, 1912 Ind. App. LEXIS 176 (Ind. Ct. App. 1912).

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Opinion

Lairy, J.

The record in this case shows that on April 13, 1908, appellant Wells & Nellegar Company, as sole plaintiff, filed a complaint in the Starke Circuit Court against appellee, based upon a promissory note dated December 22, 1896, and due July 22, 1897. This complaint showed on its face that the note sued on was barred by the statute of limitations, and a demurrer was afterwards sustained thereto and leave granted to amend. The record shows that on September 24, 1909, an amended complaint was filed by Wells & Nellegar Company and Joseph B. Betties against appellee. This complaint avers that after the original com[297]*297plaint was filed, the note sued on was sold and delivered to plaintiff Joseph B. • Betties, and that he has become the sole owner thereof. The amended complaint then alleges facts showing the execution and delivery of the note to Wells & Nellegar Company, and sets out a copy of the note. It is also averred that on April 18, 1898, within ten years prior to the filing of the original complaint, the defendant made a new promise in writing to pay the note sued on, and a copy of the letter alleged to contain the written promise signed by defendant is set out in the complaint. A recital of the other averments of the amended complaint is not necessary to an understanding of the points involved in this opinion.

The defendant demurred to the amended complaint for want of facts sufficient to constitute a cause of action, which demurrer was sustained by the court and the plaintiff excepted. This presents the only question on appeal.

1. Where there is more than one plaintiff, the complaint to be sufficient must state facts sufficient to constitute a cause of action in favor of each plaintiff. Where it fails to state a cause of action as to one plaintiff it is insufficient as to all. McIntosh y. Zaring (1898), 150 Ind. 301; Brunson v. Henry (1884), 140 Ind. 455; Frankel v. Garrard (1903), 160 Ind. 209.

2. Where two or more persons join as plaintiffs, the demurrer for want of facts questions their right to sue jointly. Louisville, etc., R. Co. v. Lohges (1893), 6 Ind. App. 288; Steinke v. Bentley (1893), 6 Ind. App. 633.

3. The complaint in this case clearly shows that the original plaintiff has parted with all interest in the note on which the complaint is founded. The facts stated in the complaint are not sufficient to show a cause of action in Wells & Nellegar Qompany, and, upon the authority of the cases heretofore cited, the demurrer was correctly sustained.

Judgment affirmed.

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Lairy, J.

The record in this case shows that on April 13, 1908, appellant Wells & Nellegar Company, as sole plaintiff, filed a complaint in the Starke Circuit Court against appellee, based upon a promissory note dated December 22, 1896, and due July 22, 1897. This complaint showed on its face that the note sued on was barred by the statute of limitations, and a demurrer was afterwards sustained thereto and leave granted to amend. The record shows that on September 24, 1909, an amended complaint was filed by Wells & Nellegar Company and Joseph B. Betties against appellee. This complaint avers that after the original com[297]*297plaint was filed, the note sued on was sold and delivered to plaintiff Joseph B. • Betties, and that he has become the sole owner thereof. The amended complaint then alleges facts showing the execution and delivery of the note to Wells & Nellegar Company, and sets out a copy of the note. It is also averred that on April 18, 1898, within ten years prior to the filing of the original complaint, the defendant made a new promise in writing to pay the note sued on, and a copy of the letter alleged to contain the written promise signed by defendant is set out in the complaint. A recital of the other averments of the amended complaint is not necessary to an understanding of the points involved in this opinion.

The defendant demurred to the amended complaint for want of facts sufficient to constitute a cause of action, which demurrer was sustained by the court and the plaintiff excepted. This presents the only question on appeal.

1. Where there is more than one plaintiff, the complaint to be sufficient must state facts sufficient to constitute a cause of action in favor of each plaintiff. Where it fails to state a cause of action as to one plaintiff it is insufficient as to all. McIntosh y. Zaring (1898), 150 Ind. 301; Brunson v. Henry (1884), 140 Ind. 455; Frankel v. Garrard (1903), 160 Ind. 209.

2. Where two or more persons join as plaintiffs, the demurrer for want of facts questions their right to sue jointly. Louisville, etc., R. Co. v. Lohges (1893), 6 Ind. App. 288; Steinke v. Bentley (1893), 6 Ind. App. 633.

3. The complaint in this case clearly shows that the original plaintiff has parted with all interest in the note on which the complaint is founded. The facts stated in the complaint are not sufficient to show a cause of action in Wells & Nellegar Qompany, and, upon the authority of the cases heretofore cited, the demurrer was correctly sustained.

Judgment affirmed.

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97 N.E. 183, 49 Ind. App. 296, 1912 Ind. App. LEXIS 176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-nellegar-co-v-short-indctapp-1912.

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