Excelsior Draining Co. v. Brown

Pettit, J. The appellant brought this suit against the •appellee, to recover an assessment of benefits on lands by the construction of the ditch. This case has been here before, •38 Ind. 384, to which we refer for a full statement of the cause as it then stood. The court below had sustained a demurrer to the complaint. This court held that ruling; erroneous, and reversed the judgment. When the case went back for further proceedings, the defendant answered in seven paragraphs; to the first, third, fourth, fifth, sixth, and seventh, the plaintiff demurred jointly for want of sufficient' facts. Subsequently the defendant withdrew the sixth and seventh paragraphs of the answer, and the demurrer was overruled to the first, third, fourth, and fifth paragraphs, excepted to, and this ruling is assigned for error. The demurrer being a joint one to the first, third, fourth, and fifth paragraphs of the answer, if any one of the paragraphs was good, the demurrer was properly overruled, and we need not inquire as to the sufficiency of the other paragraphs of the answer. The first paragraph of the answer was in these words : “ For answer to plaintiff's complaint, the defendant says that at and before the time of the institution of this suit, [20] there was no such corporation as the Excelsior Draining: Company organized under the laws of the State of Indiana.’* This was properly sworn to and verified by the oath of the defendant, and was a clear and full answer of nul tiel corporation, and was a bar to the action, if true. It follows that there was no error in overruling the demurrer to the answer. The counsel for the appellant, in his brief, confines his argument to the supposed insufficiency of the third paragraph of the answer, which may be termed a special answer of nul tiel corporation. We neednot consider the sufficiency of this paragraph, for the reasons above given. The plaintiff refusing to reply to the paragraphs of the answer to which, the demurrer had been overruled, a judgment was rendered for the defendant for costs since the reversal of the judgment by the Supreme Court, and for the plaintiff for all costs against the defendant up to the time of sustaining the demurrer to the complaint. The judgment for costs against the defendant was properly excepted to, and is assigned as a cross error. The judgment for costs against the defendant up to the sustaining of the demurrer to the complaint was error. The defendant was liable for the costs in the court below, on the reversal of the case here, back to the commission of the error for which the cause was reversed, and not for costa made before that time. The judgment against the appellant is affirmed, and the judgment against the appellee, for costs accrued before the sustaining of the demurrer to the complaint, is reversed, with instructions to order the costs made before the sustaining of the demurrer to the complaint to be taxed to the appellant; all of which is done at the costs of the appellant.