Hollingsworth v. State ex rel. Harvey

Stuart, J. Hollingsworth had been the guardian of [258] Dditha Butler. While jet a minor Delitlia intermarried with Thomas B. TIarvey. This was a suit on the guardian’s bond. Judgment for the State for 1,176 dollars. Hollingsworth and sureties appeal. The complaint was demurred to for want of jurisdiction, and the demurrer overruled. And correctly. In all actions against guardians and their sureties the Circuit Court and Common Pleas have concurrent jurisdiction. 2 R. S. p. 17, s. 5. Three several errors are assigned, and, as to form, they are sufficiently specific. But in the argument, the error’s assigned are not alluded to; and five other points are made and ai’gued, which have no relation to the errors assigned. It is further fatal to the points made in argument, that they wore not made in the Court below. Priddy v. Dodd, 4 Inch R. 84. And if they had been made there, wo must regard them as abandoned by the assignment of errors. A specific assignment of all errors relied upon must be made. 2 R. S. 161. It is the assignment of errors which informs the appellee what he is called upon to answer. That assignment is in the nature of a declaration or complaint. ' To permit a party to assign one class of errors and argue another, would bo to eontenanee connivance and unfair practice. The appellee looks to the errors assigned. When he has answered them, he has no reason to expect there is anything behind, save such fatal defects on the face of the record — such as want of jurisdiction — • as the Court would feel bound to notice judicially. It is true the twenty-seventh rule requires an interchange of briefs; but only upon request. Neglect to request such interchange would not impose on the appellee the necessity of answering errors not assigned ; nor on us to decide them. Nor has the defense in this case much,merit. The record clearly shows that the guardian was indebted on settlement of his guardianship, to 'the full amount recovered. Instead of leaving the money of his ward at interest secured by mortgage, and due January 7, 1855, [259] lie took upon himself to discount the note 4 per cent.; and then proposed to pay it over to Harvey and wife at. a discount of 10 per cent. To this Mrs. Harvey replied as follows: “ Plainfield, 12th month 16th, 1853. Eespeeted friend Thomas Hollingsworth: — I received thy letter some time since, stating the amount that would be in thy hands at the end of the present year for me; and also containing a proposition for paying the principal of the note on Thomas Beard at a discount of 10 per cent. * * * * I do not wish to discount that note on Beard. Thy friend JDelitha B. Harvey.” Thereupon Hollingsworth loaned the money to his son. When sued he argues that Harvey was not of ' full age; that his'majority being alleged in the complaint was put in issue by the general denial of the answer. The allegation of Harvey’s age was immaterial. His competence to sue will be presumed until' the contrary appear. Besides, the general denial admitted the character in which the plaintiff sued. Linville v. Earlywine, 4 Blackf. 469. Under the old practice, the infancy of the plaintiff was available in abatement only. 1 Chitty, 448. — 2 Saund. 299, a. — 7 Johns. 373. — 8 Pick. 552. Under the new practice, the fact that the plaintiff had not legal capacity to sue must be taken by answer— otherwise, the objection is waived. 2 E. S. pp. 38, 39. A general denial of an immaterial allegation does not, in this instance at least, put the matter alleged in issue. Another point of objection urged in argument is, that the effects in the hands of Hollingsworth were the separate property of the wife, and hence she should sue alone. This is equally untenable. The new statute furnishes the rule in this behalf. Thus, where a married woman is a party, her husband must be joined with her, except when the action concerns her separate property she may sue alone. 2 E. S. p. 28. “ May” is hot here impera [260] tive, but permissive. It is clearly left discretionary, in to the “must” of the preceding clause. ijijjg guit, therefore, though brought for the wife’s separate property, may be properly brought in the name of husband and wife, or by the ydfe alone, at their option. C. H. Test and J. Yaryan, for the appellants. G. W. Julian, for the appellees. These points in argument are thus noticed to indicate the scope of the defense. If we do not place the damages at the highest amount,) it is only because the sureties may be affected by it. "We will therefore adopt the rule in Hand v. Taylor, 4 Ind. R. 409. Per Curiam. The judgment is affirmed with 5 per cent, damages and costs.