(3 Ind. App. 553)

RINEHART et al. v. NILES. (Appellate Court of Indiana. Feb. 16, 1892.) ACTION ON NOTE-HARMLESS ERROR-OVERRULING DEMURRER TO REPLY.

In an action against the joint makers of a note, defendants answered jointly, and plaintiff replied in three paragraphs; the first being a general denial, and the second and third being limited to one only of the defendants. A demurrer to the latter two paragraphs was overruled. The complaint and the second and third paragraphs of the reply were based on papers which were proved prima facie by their production. All the other evidence was exclusively addressed to the answer and general denial. The court held both defendants liable on the note, independent of the facts pleaded in the second and third paragraphs of the reply. Held, that the error, if any, in overruling the demurrer to the reply, could not have prejudiced either of the defendants.

Appeal from circuit court, White county; A. W. REYNOLDS, Judge.

Action by William Niles against William A. Rinehart and another on a note. Judgment for plaintiff. Defendants appeal. Affirmed.

S. P. Thompson, for appellants. T. F. Palmer and Wm. Niles, for appellee.

ROBINSON, C. J. This suit was brought to recover the balance alleged to be due on a promissory note for $840, bearing date March 30, 1887, executed by the appellants to the appellee, due in one year after date. Appellants answered the complaint in one paragraph. Appellee replied in three paragraphs,-first, general denial; the second and third were limited to the appellant Rinehart only. Appellant demurred to the second and third paragraphs of the reply for want of facts, which was overruled and exception saved. The cause was tried by the court, and the finding and judgment were for the appellee. The errors assigned are the alleged errors of the court in overruling the demurrer to the second and third paragraphs of the reply, and in overruling the motion for a new trial. All of the causes assigned in the motion for a new trial are waived in argument, except the third and fourth, which alleged that the finding of the court was not sustained by sufficient evidence, and that there was error in the assessment of the amount of recovery; said amount being too large.

The answer of the appellants was only as to a part of the note sued on, and alv.30N.E.no.1-1

leged that a part of the consideration of the note was a mare purchased by the appellants of the appellee, described in a catalogue printed and published by the appellee and fully set out therein; that the appellee, to induce the sale of said mare, placed the catalogue in the hands of the appellant Rinehart, who believed the description to be true, and, relying on and believing that the mare was out of a standard horse, to-wit, Duke of Lexington, purchased the mare for $250, as a producer of standard-bred trotting colts when bred to a standard-bred trotting horse, under rule 7 of the National Association of Trotting-Horse Breeders, reading as follows," the progeny of a standard horse out of a mare by a standard horse, and would not have purchased the mare had the representations not been made; that the mare was not in fact a desceudant of Black Bashaw 782, as stated in said. circular, and was not a standard producer when bred to a standard horse; that the appellants continued to rely on the statements of the catalogue until May 10, 1889, when the mare dropped a mare colt by a standard stallion, and the appellants applied to have the colt registered under rule 7, as it then was, and learned that the mare was not a great-granddaughter of Black Bashaw No. 782, and was incapable of breeding colts which could be registered in the American Trotting Register by reason of their breeding record, whereupon the appellants at once notified the appellee, and offered to return said mare to appellee, but he refused to accept said mare; that the appellants also offered to pay the real value of said mare, to-wit, the sum of $150, and take up said note, and appellee refused to make any reduction on account of said defect in the pedigree of said mare; that, had the mare been bred as represented by the appellee, she would have been worth $400, and, bred as she is, she was worth but $150. Wherefore, etc.

As we have seen, the second and third paragraphs of the reply were limited to the appellant Rinehart only. The second paragraph sets up that, before the note came due, appellant Rinehart, by letter, acknowledged his liability on the note, and agreed that, in consideration of the extension of the time of payment of $500 of the principal for one year, he would pay the interest on the note for one year, and $340 of the principal, and at the end

of the second year would pay the remaining $500, with interest at the rate of 8 per cent. to which the appellee assented; that the appellant Rinehart made the partial payment as agreed, and the appellee accepted interest on the note for the first year at the rate of 6 per cent. instead of 8 per cent., to which he would otherwise have been entitled by the terms of the note, if it had not been paid when due, whereby the appellee sustained a loss and the appellants received a benefit of $16.80, and the appellee, in pursuance of the agreement, allowed the note to run another year. The third paragraph of the reply sets up that on March 30, 1889, the appellant Rinehart, by letter, acknowledged his liability for the residue of the note, and paid the interest thereon for one year, and $200 of the principal, and agreed that in consideration of the extension of the time of payment of the remaining $300 to May 15, 1889, he would pay the same, with interest on that date, and in reliance upon that agreement the appellee did so again extend the time of payment. The appellee demurred to the answer of the appellants, which was overruled and exception saved, and insists in argument that as the de

urrer searches the record, and the answer was bad, there was no error in overruling the demurrer to the second and third paragraphs of the reply.

The practice is well settled that a bad reply is sufficient for a bad answer on demurrer, and that a demurrer to such reply ought to be carried back and sustained to such answer. Knippenberg v. Morris, 80 Ind. 540; State v. Mills, 82 Ind. 126; Hancock v. Fleming, 85 Ind. 571; Cupp v. Campbell, 103 Ind. 213, 2 N. E. Rep. 565; Richardson v. Seybold, 76 Ind. 58; Wilhite v. Hamrick, 92 Ind. 594. But we do not think it essential, in arriving at a conclusion upon the merits of the case before us, under the record, to determine the question as to the sufficiency of the answer or the sufficiency of the second and third paragraphs of the reply thereto. The evidence is in the record, and it clearly appears, under the position the parties occupy in this court, that the ruling on the demurrers to the pleadings was harmless. As before seeen, the first paragraph of the reply was a general denial, addressed to the answer of both appellants. The second and third paragraphs of the reply applied only to the appellant Rinehart. The complaint and the second and third paragraphs of the reply were based on paper writings, and were proved prima facie by the production of those writings. All the other evidence in the case was exclusively addressed to the answer, and the general denial thereto. The only contingency in which the two last paragraphs of the reply could have become important would have been upon a finding and judgment for the appellants on the answer and first paragraph of the reply. In that case the appellant Rinehart would still have remained liable upon the facts alleged in the two other paragraphs of the reply. But that contingency did not happen. The court, under the evidence, held both appellants liable on the note sued on, independent of the facts pleaded in the second

and third paragraphs of the reply, and the appellants, on the trial, had all the benefit of their answer, which was joint, that they could have had if the demurrer to the second and third paragraphs of the reply had been sustained. As to the appellant McCoy, the case was tried upon the complaint, answer, and reply of general denial; and, upon the issues as thus joined as to the appellant McCoy, the finding and judg ment were against him, from which it conclusively appears that the facts alleged in the second and third paragraphs did not harm the appellants. It is well settled "that a case will not be reversed on account of a harmless error;" "that on appeal to this court a judgment will not be reversed unless the record shows affirmatively that an error or errors intervened in the proceedings below; and that such error or errors were, or probably were, prejudicial to the party complaining here. If the re ply was too narrow, it is nevertheless clear that the judgment does not rest upon it, but upon proof abundantly sufficient, and which was admissible, independently of the bad paragraphs; and, this being so, the error is not available. At all events, it was not, as the whole record shows, an error that prejudiced the substantial rights of the appellants; and it is only substantial errors that entitle parties to a re. versal." Uhl v. Harvey, 78 Ind. 26; Mathews v. Droud, 114 Ind. 268, 16 N. E. Rep. 599; Cline v. Lindsey, 110 Ind. 337, 11 N. Ë. Rep. 441; Passmore v. Passmore, 113 Ind. 237, 15 N. E. Rep. 338; Railway Co. v. Collarn, 73 Ind. 261; Trammel v. Chipman, 74 Ind. 474; Ward v. Insurance Co., 108 Ind. 301, 9 N. E. Rep. 361.

The remaining contention of the appellants is that the finding of the court was not sustained by sufficient evidence, and that the damages assessed were excessive. We have carefully examined all the evidence. No good purpose would be subserved in setting it out. This court has so repeatedly decided that it will not reverse a judgment on the weight of the evidence that it is unnecessary to cite authorities in support of such rule. In the case before us, there was evidence tending to sustain the finding and judgment as to both of the appellants, independent of the facts alleged in the second and third paragraphs of the reply. As to most of the facts, there was no conflict in the evidence, and where there was such conflict the question was determined upon the preponderance of the evidence. We find no error in the record for which the cause should be reversed. The judgment is affirmed, at appellants' costs.

(3 Ind. A. 525)

CITY OF LA PORTE V. ORGAN. (Appellate Court of Indiana. Feb. 3, 1892.) APPEAL-EXCEPTIONS-TIME OF TAKING OBJEC

TIONS NOT APPARENT ON THE RECORD.

1. Under Rev. St. 1881, § 626, which provides that "the party objecting to the decision must except at the time the decision is made," the ruling of a lower court, sustaining a demurrer, will not be reviewed on appeal, where the record shows that exceptions were not taken until three days after such ruling.

2. The entry of a judgment on demurrer nunc pro tune will not be considered on appeal, where the motion for judgment and the ruling of the court are not made a part of the record by bill of exceptions or by an order of the trial court.

3. Where a motion to set aside a judgment is overruled, and appellant relies on a certain statute, but does not state on what grounds under the statute he is entitled to relief, and it does not appear from an examination of the causes assigned in the motion that the lower court erred in its ruling under the statute, the judgment will not be disturbed.

Appeal from circuit court, La Porte county; D. NOYES, Judge.

Action by the city of La Porte against John H. Organ, administrator. Judgment for defendant. Plaintiff appeals. Affirmed.

Mortimer Nye and W. B. Biddle, for appellant. John H. Bradley, for appellee.

ROBINSON, C. J. The appellant filed its claim in the nature of a complaint in three paragraphs against the appellee's decedent, and, not being allowed, was transferred to the trial docket of the La Porte circuit court for the September term, 1890. A demurrer was filed to each paragraph of the complaint, and sustained without exception being taken to the ruling, and leave was granted to amend. The appellant afterwards filed an amend. ed third paragraph of complaint, to which a demurrer was also sustained, and on the third day after the demurrer was sustained to the amended third paragraph of the complaint appellant excepted to the ruling of the court on the demurrer to this paragraph of the complaint, and prayed an appeal to the supreme court, which was granted on filing bond, etc., within 30 days. The bond for appeal was filed in vacation. At the ensuing November term of the court, it appearing that judgment had not been rendered on the demurrer as sustained as to the third par agraph of the amended complaint, on motion of the appellant the cause was redocketed, and at that time the court, on motion of the appellee, rendered a judgment nunc pro tune as of September 18, 1890. Afterwards appellant filed a motion, supported by affidavit, to set aside the judgment on demurrer, and to be allowed to plead further, which motion was overruled, to which ruling the appellant excepted, and prayed another appeal, and filed another bond. The errors assigned in this court are: (1) Sustaining the demurrer to the amended third paragraph of the complaint; (2) sustaining appellee's motion for judgment nunc pro tune; (3) | entering judgment on demurrer as of date September 18, 1890; (4) overruling appellant's motion to be relieved from the judgment.

Under the first assignment of error.that the court erred in overruling the demurrer to the amended third paragraph of the complaint,-no question is presented by the record in this court, for the reason that no exception was taken to the ruling of the circuit court at the proper time. The following entry appears in the record on the 15th day of September, 1890, being the thirteenth judicial day of the September term of said court: "Now

come the parties by counsel, and the court sustains the demurrer to the amended third paragraph of the claimant's cause of action." Afterwards, on the 18th day of September, 1890, being the sixteenth judicial day of the September term of said court, the following entry appears in the record: "Now come the parties by coun sel, and the claimant excepts to the sustaining the demurrer to the amended complaint heretofore had, and all pleadings are made a part of the record. Thereupon the claimant prays an appeal to the supreme court, which is granted by the court upon claimant's filing a bond, etc., within thirty days." Section 626, Rev. St. 1881, is imperative on this question That section provides that "the party objecting to the decision must except at the time the decision is made." As we have seen, the court sustained the demurrer to the amended third paragraph of the complaint on the 15th day of September, 1890, being the thirteenth judicial day of said term of said court, and that no exception was taken to the ruling at the time; and that afterwards, on the 18th day of September, 1890, being the sixteenth judicial day of the September term of said court, the claimant excepted to the sustaining of the demurrer to the amended complaint heretofore had, etc. It is settled that, in order to save any question for review in this court in a case like this, an exception to the conclusion of law must be taken at the time the decision was made. There is no question presented to this court on the ruling of the lower court in sustaining the demurrer to the amended complaint. Matsinger v. Fort, 118 Ind. 107, 20 N. E. Rep. 653.

The second and third errors assigned present the question as to the sustaining of the appellee's motion for judgment nunc pro tune, and in entering judgment on the demurrer as of date September 18, 1850. As has been seen, at the November term of said court, on appellant's motion, the cause was redocketed. The motion to redocket the cause was based upon the verified petition of the appellant, by which it was shown that on the 18th day of September, 1890, being the sixteenth judicial day of said term of said court, and being the term of said court immediately preceding the November term of said court, a demurrer having been previously sustained to the third paragraph of the amended complaint, appellant's attorney caused to be entered of record an exception to the ruling of the court in sustaining said demurrer, and thereupon certain entries were made in the nature and form of appealing said cause to the supreme court; that there was no judgment ren. dered in said cause upon said demarrer, nor was any judgment rendered therein; that said cause remained undisposed of, and by oversight and misapprehension had been left off of the docket at said November term of said court; wherefore appellant moved that said cause be reinstated upon the docket of said court, which motion was sustained by the court, and thereupon the appellee moved the court to have the judgment on the demurrer as announced by the court September 18, 1890,

entered as of that date, which motion was sustained, and judgment was rendered against appellant on the demurrer, the appellant failing to amend. Under this condition of the record, although the appellant was present in court when appellee's motion for judgment on the demurrer was made and sustained, and caused an exception to be entered of record to said motion and the ruling thereon, the second and third assignments of error present no question in this court, because the motion of the appellee for judgment on the demurrer, and the ruling of the court thereon, were not made a part of the record by bill of exceptions or by an order of the trial court. Shields v. McMahon, 101 Ind. 591; Chissom v. Barber, 100 Ind. 1.

After the court sustained the appellee's motion for judgment on demurrer appellant filed a motion, supported by affidavit, to set aside said judgment, and to be relieved therefrom, which motion was overruled, and constitutes the fourth assignment of error. The affida

vit filed in support of said motion was made by the appellant's attorney, and stated, in substance, that the affiant was afraid that the complaint did not state a cause of action, and was apprehensive that it was bad, for reasons therein stated; that, if the judgment was set aside, and appellant again allowed to amend, a cause of action could be filed sufficient to withstand a demurrer; that certain facts had been omitted from said complaint which should have been averred therein to more fully present appellant's cause of action, etc. No reason is assigned by the appellant why this motion should have been sustained, further than to suggest that, under the circumstances shown by the record, the appellant was entitled to be relieved from the judgment under section 396, Rev. St. 1881. We are not advised by the brief of the appellant upon what ground, under the statute cited, the court should have relieved appellant from the judgment, and it does not appear from an examination of the causes assigned in the motion that the court erred in its ruling thereon under said statute. The judgment is affirmed, with costs. (3 Ind. App. 530)

FOSTER V. DAILY. (Appellate Court of Indiana. Feb. 8, 1892.) PLEA IN ABATEMENT - AGREEMENT TO EXTEND TIME-DEMURRER.

1. An agreement, after suit is brought, to extend the time of payment of an indebtedness, cannot be pleaded as a bar to the action.

2. A general demurrer to the "amended second paragraph of defendant's answer for the reason that the same does not state facts sufficient to constitute a good defense to plaintiff's complaint" is not objectionable on the ground that complaint" is used instead of the words “cause of action."

Appeal from circuit court, Adams county; D. D. HELLER, Judge.

Action by Andrew C. Daily against Joseph J. Foster. The complaint alleged two causes of action: (1) On a promissory note; and (2) on indebtedness. Defendant appeals from an order of the court sus

taining a demurrer to the second paragraph of his answer. Affirmed.

Bobo & Bobo, France & France, and R. C. Bell, for appellant. E. A. Huffman, for appellee.

BLACK, J. The appellee's complaint was in two paragraphs; the first being upon a promissory note made by the appellant to the appellee, and the second alleging an indebtedness arising out of a mutual mistake in the settlement of certain accounts existing between the parties. The court sustained a demurrer to the second paragraph of appellant's answer, and this ruling is assigned as error. The answer was filed on the 24th of January, 1891. The first paragraph was a general denial. The second alleged that on a day stated, subsequent to the commencement of the action, the parties made "a contract for a valuable consideration, to-wit, ten dollars, wherein this plaintiff agreed that the indebtedness sued upon, and mentioned in plaintiff's complaint, should not be due, and no suit should be brought therefor in any court, until the 20th day of March, 1891; that this defendant has paid and performed every condition of said contract on his part, but that the plaintiff has failed and now refuses to perform the condition of said contract on his part." This paragraph was pleaded in bar of the action.

It has been decided in many cases in this state, both before and since the adoption of the reformed procedure, that the violation of an agreement to extend the time of payment, or not to sue for a limited period, cannot defeat a recovery against a principal debtor, no matter in what form of pleading he may set up the breach of the collateral contract. Berry v. Bates, 2 Blackf. 118; Mendenhall v. Len well, 5 Blackf. 125; Newkirk v. Neild, 19 Ind. 194; Irons v. Woodfill, 32 Ind. 40; Nelson v. White, 61 Ind. 139; Mills v. Todd, 83 Ind. 25: Williams v. Scott, 83 Ind. 405-411; Vogel v. Harris, 112 Ind. 494, 14 N. E. Rep. 385. If this be true of an agreement made before the commencement of the action, it must be true that the breach of such an agreement made after the commencement of the action cannot be well pleaded in bar of the action.

The appellant insists that the demurrer was insufficient in form. Omitting the title and the signature, the demurrer was as follows: "The plaintiff demurs to the amended second paragraph of the defendant's answer for the reason that the same does not state facts sufficient to consti. tute a good defense to plaintiff's complaint." It seems to be supposed by counsel for the appellant that this demurrer was not sufficient to raise the question as to the sufficiency of the paragraph of answer to which it was addressed, because of the use of the word "complaint" instead of the words "cause of action. "9 This objection is not well taken. We think the demurrer was sufficient in form and substance. Wright v. Nipple, 92 Ind. 310; Young v. Warder, 94 Ind. 357; McFadden v. Fritz, 110 Ind. 1, 10 N. E. Rep. 120; Lewellen v. Crane, 113 Ind. 289, 15 N. E. Rep.515. If the demurrer were defective in form,