Kelley v. Scanlan

Hotted, J. This is an action begun by appellee James P. Scanlan to recover a commission alleged to be due him as broker in the sale of certain real estate. The appellees Condit-McGinnity Realty Company and Gary State Bank were made garnishee defendants. A trial by the court resulted in a finding and judgment against the appellants in favor of appellee Scanlan and, an order on the garnishee defendant bank to pay over to said Scanlan the sum of $850 of the money in its hands belonging to said appellants, and an order dismissing the action as to the garnishee defendant realty company. Prom this judgment appellants appeal and in their original assignment of error questioned the ruling on their motion for a new trial alone. They afterwards asked and were granted a writ of certiorari and leave to amend their assignment of error. This amended assignment of error, omitting the caption, is as follows: “The appellants say there is manifest error in the judgment and proceedings in this cause for each of the following reasons: (1) The amended complaint does not state facts sufficient to constitute a cause of action. (2) The court erred in overruling the demurrer to the amended complaint. (3) The court erred in overruling the motion for a new trial.” "We do not deem it necessary to set out the amended complaint. It is clearly sufficient we think to withstand an at [613] tack, first made in this court, such as is presented by the first error assigned. Hubbard v. Reily (1912), 51 Ind. App. 19, 98 N. E. 886, and authorities cited. 1. 2. [614] 3. 4. [613] The second error assigned presents no question for either of two reasons: (1) There were several defendants to the complaint. They may have each filed a separate demurrer to the complaint based on any one or more of the different grounds of demurrer provided by the statute, or any two or more of such defendants may have filed a joint demurrer based on either, or all of such grounds, and hence any ruling on such several demurrers would necessarily present entirely different and distinct questions. The assignment here relied on does not indicate whose demurrer, or in any other way specify or identify the particular demurrer to which the ruling assigned as error is intended to refer, and hence, under §696 Burns 1908, §655 R. S. 1881, and Rule 4 of this court, is not sufficiently specific to present any question for review. Walter A. Wood, etc., Mfg. Co. v. Angemeier (1912), 51 Ind. App. 258, 99 N. E. 500, and authorities there cited; State, ex rel. v. Lung (1907), 168 Ind. 553, 557, 558, 80 N. E. 541; J. Painter & Sons v. W. H. Metz Co. (1893), 7 Ind. App. 652, 654, 35 N. E. 27; Baldwin v. Sutton (1897), 148 Ind. 591, 593, 47 N. E. 629, 1067. (2) The record as originally filed shows that after the service of the writ of attachment on' each of the garnishee defendants appellee Scanlan filed an amended complaint to which the appellants, naming them, filed “their several demurrers which said several demurrers are respectively in these words: (Not on file)”; that “the demurrers of the defendants John M. Kelley, Minnie Kelley and Washington L. Albee are now overruled to which ruling of the court said defendants severally except.” By a return to the writ of certiorari granted herein it appears that appellants, naming them, filed “their several demurrers to the plaintiff’s amended complaint which said demurrer is in these words: The defendants John M. Kel [614] ley, Minnie Kelley and Washington L. Albee each demur to plaintiff’s amended complaint, and, for cause of demurrer say that said amended complaint does not contain facts sufficient to constitute a cause of action.” The return to the certiorari shows no ruling on such demurrer therein set out. The record as originally filed would indicate that each of the appellants filed a separate demurrer making three in number, each of which may have been for different causes, and each of which was overruled by the court. The writ.of certiorari would indicate that the appellants filed one several demurrer in which case the demurrer though several or separate as to each appellant would necessarily be for the same cause. As the record comes to us, we cannot know whether one or more than one demurrer was filed; and hence under the authorities, supra, no question is presented by such assignment; but, in any event, it affirmatively appears both from the record as originally filed and from the return to the writ of certiorari that the demurrer or demurrers, whether one or more, and the exceptions to the rulings thereon were separate and several as to each appellant, and hence no question is presented by the assignment of error which is joint as to all the appellants. Fowler v. Newsom (1910), 174 Ind. 104, 114, 90 N. E. 9; Doty v. Patterson (1900), 155 Ind. 60, 61, 56 N. E. 668; Green v. Heaston (1900), 154 Ind. 127, 130, 56 N. E. 87; Morey v. Terre Haute, etc., Light Co. (1911), 47 Ind. App. 16, 29, 93 N. E. 710, and authorities there cited. For the same reasons no question is presented by appellants’ third assigned error. No available error being presented by the record, the judgment below is affirmed. Note.—Reported in 104 N. E. 516. See, also, under (1, 3, 4) 2 Cyc. 1003; (2) 2 Cyc. 1002.