Cohoon v. Fisher

McCabe, J. The errors assigned in this case are based on the action of the circuit court in overruling a demurrer to the fourth paragraph of the defendant’s answer and sustaining a demurrer to the second paragraph of the plaintiff’s reply. The ground of each demurrer was want of sufficient facts. It appears, from the fourth paragraph of the answer and the record, that the complaint to which it is addressed is an amended complaint; and it seeks to recover damages for fraud alleged to have been perpetrated by the defendant, appellee, upon the appellant in a contract of dissolution of an alleged partnership between them in the hardware business. It also appears that the original complaint, before it was amended, sought to rescind the same contract [584] on account of the fraud, and asked for the appointment of a receiver. These facts are alleged at great length, and that the court refused to appoint a receiver. The answer seeks to bar the amended complaint because in the original complaint the remedy-sought was a rescission of the contract on account of fraud, and in the amended complaint the remedy invoked was to recover damages on account of the alleged fraud. In support of the ruling of the circuit court it is contended that the two remedies are inconsistent, and that one having been adopted the other cannot be resorted to, and appellee cites in support of his contention Buscher v. Knapp, Admr., 107 Ind. 340. That was a case where a'suit to review a judgment resulted unsuccessfully, and the defendant in the judgment sought to be reviewed appealed from the original judgment. It was there incidentally said, “that a party cannot prosecute an appeal and a suit to review, but must elect between these two remedies.” Citing Traders Ins. Co. v. Carpenter, 85 Ind. 350; Klebar v. Town of Corydon, 80 Ind. 95; Searle v. Whipperman, 79 Ind. 424; Dunkle v. Elston, 71 Ind. 585. Another case cited by counsel is the recent case of American Furniture Co. v. Town of Batesville, 139 Ind. 77, where it is said: “If there are concurring effectual remedies, the choice and uninterrupted prosecution of one excludes the other.” To the same effect are all the cases, namely, the prosecution of one remedy must either be pending or have been prosecuted to final determination to bar or. exclude another concurrent remedy for the same right. The amendment of the complaint superseded the original complaint. Therefore, the remedy invoked therein is not being prosecuted to determination. The exact question here involved was decided adversely to [585] the contention of appellee in Nysewander v. Lowman, 124 Ind. 584, except that the appointment of a receiver was not asked for in that case. The amended complaint before us asked the appointment of a receiver. The refusal to appoint a receiver under it was a mere interlocutory order, a mere incident to the main case, and was not an adjudication on the merits of the remedy invoked in the original complaint. Naylor v. Sidener, 106 Ind. 179. The fourth paragraph of the answer, therefore, did not state facts sufficient to constitute a defense to the amended complaint. The circuit court erred in overruling the demurrer to the fourth paragraph of the answer. We need not, and do not consider the sufficiency of the second paragraph of the reply, as it was addressed to the fourth paragraph of the answer, which we have held bad. The appellee has assigned cross-errors, but it does not appear when that was done. Rule 4 of this court requires cross-errors to be assigned within sixty days after the submission of the cause. For this reason we do not consider the cross-errors. The judgment is reversed, with instructions to sustain the demurrer to the fourth paragraph of the answer.