Drook v. Irvine

Osborn, J. —This was an action instituted in the court of common pleas of Grant county, by the appellee against the appellant, upon a promissory note and to foreclose a chattel mortgage upon a portable saw-mill in that county. The appellant answered that the note and mortgage were given in consideration of the sale to him, by the appellee, of the mill mentioned in the mortgage; that the appellee, at the time, entered into a written agreement, by which he warranted, [431] amongst other things, that the mill so' sold was in good and complete running order, with all the fixtures and appurtenances belonging to it. He also averred that the mill was not in good running order, and states wherein it was out of order, the particulars of which it is not necessary to state here, in order to understand the question to be decided. No copy of the written contract was filed with the answer. To that answer the appellee replied in two paragraphs, the general denial, and one in which it is stated that the appellee, a few days before the making of the contract mentioned in the answer, verbally sold the mill to the appellant, and entered into the contract for the purpose of binding the parties until they should test the mill and execute the note and mortgage and other writings therewith connected; that afterward they met, examined, and tested the mill, and thereupon the appellant, being fully satisfied with the mill, executed said papers, and accepted the mill in satisfaction of the written contract, and surrendered the same to the appellee for cancellation. A demurrer was filed to the replication, which was overruled, and duly excepted to. The cause was tried by the court, finding for the appellee, motion for a new trial overruled, exception, and judgment on the finding. The errors assigned are, first, overruling demurrer to second paragraph of reply; second, overruling the motion for a new trial; third, rendering judgment of foreclosure. The demurrer to the reply ought to have been sustained to the answer, because no copy of the written contract was filed with it. 14 Ind. 19; 14 Ind. 311; 14 Ind. 131; 13 Ind. 58; 13 Ind. 61; 13 Ind. 146. And although the replication might be bad, still there would be no available error in favor of the appellant in this case, for the reason that it is not error to overrule a demurrer to a bad reply to a bad answer. 15 Ind. 169; 35 Ind. 304. But we see no objection to the reply in this case. The evidence is not before us, and we cannot therefore decide upon the question of the new trial. If the appellant desired this court to pass upon the evidence; [432] and decide upon its sufficiency to sustain the finding, he should have set it out in a bill of exceptions. That he failed to do. A. Steele, R. T. St. John, J. Brownlee, and H. Brownlee, for appellant. J. Van Devanter and J. F. McDowell, for appellee. The last error assigned is, in rendering judgment of foreclosure. No error is pointed out by the appellant, and we have not been able to find any. The foreclosure was a part of the remedy prayed in the complaint. On the trial, the court found generally for the appellee, and he was entitled to a judgment of foreclosure on the complaint and finding. The judgment of the said common pleas court of Grant county is affirmed, with five per cent, damages and costs.