Carpenter v. Sigler

and overruled as to some, and issues were formed by a reply consisting of several paragraphs. Ultimately the court rendered judgment on demurrer to some of the paragraphs of the pleading. Errors are assigned, calling in question the regularity of these proceedings.

In Kellogg v. Price, 42 Ind. 360, we expressed the opinion that on such appeals there should be no demurrers to the transcript, no answers, and no replies. Some of the paragraphs of answer in this case are clearly insufficient. Assuming that an answer could properly be filed, others may set up sufficient matters to defeat the assessment, but we do not so decide. The appeal is from the assessment, for the purpose of controverting its correctness. Some of the answers attack the company, with a view of showing that it has no legal existence.

The judgment is reversed, with costs; and the cause is remanded, with instructions to set aside all the paragraphs of the answer, and proceed as indicated in Kellogg v. Price, supra.

CARPENTER v. SIGLER.

SUPERIOR COURT.—Assignment of Error.-Where, on appeal from a superior court, the record does not show that error was assigned in the general term of that court, the judgment will be affirmed.

From the Marion Superior Court.

7. E. McDonald and J. M. Butler, for appellant. D. V. Burns, for appellee.

OSBORN, J.-The appellee sued and recovered judgment against the appellant and Nathaniel B. Coder, in special term of the Marion Superior Court. The appellant alone appealed to the general term, where the judgment was affirmed.

Patterson et al. v. Lord.

The record does not show that any errors were assigned in general term.

In Wilson v. Harrison, 44 Ind. 468, this court held that we could only know what errors were assigned in general term of the Marion Superior Court as they appeared in the record. "If none are there, we must presume that none were assigned. If none were assigned, then the court in general term committed no error in affirming the judgment. It follows that the judgment must be affirmed."

The judgment of the said Marion Superior Court in general term is in all things affirmed, with costs and five per cent. damages.

Petition for a rehearing overruled.

PATTERSON ET AL. v. LORD.

PRACTICE.-Striking out Answer.-Record.-The fact that the clerk has copied into a transcript a paragraph of answer that was struck out by the court, does not make it a part of the record on appeal; it can only be made a part of the record by a bill of exceptions.

SAME.-Amended Pleading.—An amended answer supersedes the original, and the latter ceases to be a part of the record.

PLEADING.-Promissory Note.-Consideration.-To an action by A. against B. on a promissory note, the defendant answered, that the note was given for a mortgage on a steam saw-mill, executed by one H., who then had a suit pending against B., and that A., to induce B. to execute the note, repre sented to him that the mortgage was valid, and could be used by him as a setoff in said pending suit; upon which representations, believing them to be true, etc., B. purchased the mortgage, and gave therefor the note, etc.; but that the mortgage was not a valid mortgage, and B. could not use it as a setoff in said action of H.

Held, that the answer was bad, if for no other reason, because it failed to state why the mortgage was invalid, or why B. could not use it as a set-off. DEMURRER.-Practice.—It is not error to sustain a demurrer to a paragraph of answer, when the same defence is pleaded in another paragraph which remains in the record.

Patterson et al. v. Lord.

DEPOSITION.-Suppression of.—The suppression of a deposition can only be urged as a ground for a new trial, and is not available as an assignment of

error.

From the Tipton Common Pleas.

F. Green, H. A. Brouse, and F. M. Robinson, for appellants.

DOWNEY, J.-Suit by the appellee as the payee, against the appellants as the makers of a promissory note. Answer in seven affirmative paragraphs.

On motion of the plaintiff, the second and fifth paragraphs of the answer were stricken out.

Demurrers filed by the plaintiff were sustained to the third and seventh paragraphs.

Reply to the first, fourth, and sixth paragraphs.

A jury trial ended in a verdict for the plaintiff. A new trial was granted on motion of the defendants. A change of venue was then ordered from Howard, where the action was commenced, to Tipton county.

A second trial by jury was had, with the same result as before. A motion for another new trial was overruled, and final judgment rendered for the plaintiff.

The first alleged error is the striking out of the second and fifth paragraphs of the answer. These paragraphs are copied into the transcript by the clerk, but they are not in the record by a bill of exceptions, and consequently are improperly there, and, for any legal purpose, might as well not be there at all. This point of practice has been ruled so frequently, that we need not delay to cite authorities.

The next error assigned is the sustaining of the demurrers to the third and seventh paragraphs of the answer. The third paragraph of the answer, as it was last amended and filed, and to which the demurrer was sustained, is not in the record, and therefore, as to it, nothing can be decided. The amended answer superseded its predecessor, and therefore, as to it, nothing can be determined.

Patterson et al. v. Lord.

The seventh paragraph is as follows: "And for further answer the defendants say, that the note in the complaint mentioned was given by the defendants to the plaintiff, in consideration that the defendants could use a mortgage which the plaintiff then held against one Horine, on a steam saw-mill then owned by the defendants, in, etc., as a set-off against a promissory note executed by the defendants to said Horine, and by him assigned to one Johnson, upon the trial in an action upon said note by Johnson as assignee of said Horine against the defendants, in the Grant Circuit Court; that the plaintiff, to induce the defendants to execute said note in complaint mentioned, and to induce them to defend against their said note to Johnson, and to incur all liability of cost and expense attending a lawsuit on his said mortgage against Johnson, to wit, court costs, witness' fees, attorneys' fees, and their own expenses and loss of time in the defence of said trial in said circuit court, represented to the defendants that his said mortgage against Horine on said mill, etc., was a valid mortgage, and a good and valid lien against said Horine on said mill, etc., against the defendants and the said Johnson as assignee of said Horine, for the amount thereof, to wit, three hundred and fifty dollars, and that the defendants could use the same as a valid set-off against their said note held by Johnson as assignee of said Horine, for three hundred and fifty dollars, upon the trial of said cause in said Grant Circuit Court; that the defendants were wholly unacquainted with the facts and circumstances under which said mortgage was executed, and surrounding the same since its execution up to that time; and they did not know whether it was a valid mortgage and lien on said mill, etc., as against them and the said Johnson, or either of them, and they did not know whether the same could be used by them as a set-off against the said note held by said Johnson upon the trial of said cause in the said. Grant Circuit Court; that they relied exclusively and implicitly upon the plaintiff's representations; that they made the defence in said cause in the Grant Circuit Court, a copy

Patterson et al. v. Lord.

of the record of which cause is filed herewith and made part of this answer. They aver that the said mortgage was not a valid mortgage and lien against the defendants and said Johnson on said mill, etc., and that the same was not a valid set-off against said note of them, said defendants, so held by said Johnson, and could not be, and was not, used by them as such upon the trial of said cause in said Grant Circuit Court; that by reason of the said false representations of the plaintiff, they were induced to and did incur large expenses in court costs, attorneys' fees, travelling expenses, and the loss of time going to and returning from, and while attending said court upon said trial, to wit, the sum of three hundred dollars, etc., which they would not otherwise have made; wherefore," etc.

As we understand this paragraph, the defendants had executed their promissory note to Horine, he had assigned it to Johnson, and Johnson had a suit pending on the note against the defendants in the Grant Circuit Court. Lord, the plaintiff, held a mortgage on the mill owned by the defendants, executed by Horine, who, we presume, had been a previous owner of the mill. For the privilege and with the prospect of using the mortgage held by Lord, as a means of defending themselves in the suit of Johnson, the defendants executed the note to Lord, on which this action was brought. It is not alleged that the mortgage was given to secure any note or other obligation; that it had been recorded; that it was assigned by the plaintiff to the defendants, or was to be assigned to them; nor is it stated why it was not a valid mortgage and lien, or for what reason it could not be used by the defendants in the action of Johnson against them. It may be that the reason why it could not be used was because it had not been legally transferred to them. If they were credulous enough to suppose from the representations of Lord, that they could use the mortgage under such circumstances as a set-off in their favor in the suit of Johnson, they cannot successfully insist that this was a fraud which can avail them as a defence to the note given by them. It