Gatzweiler ex rel. Mittalberger v. Morgner

Bliss, Judge, delivered the opinion of the court. This is in all respects a similar action to the one decided at this term against the same defendant, and in favor of Mary T. Dugan’s administrator. The estate of the wife is created by a deed precisely like the one in that case; the deception complained of is the same; the object of the action is the same, and the circumstances throughout are the same, except that Levice Mit-talberger, to whose use the conveyance was made, is still living. [95] The instructions asked by defendant, and refused, were in the nature of a demurrer to the evidence and pleadings, and the chief points made in his counsel’s brief are that the, estate is not a separate one, and that the husband should have joined in the suit. Those points were considered in the other case, and I will only add that if he objects to the petition because “ there is a defect of parties,” or because a plaintiff “is not a necessary party,” he should have demurred instead of answering to the merits. (Wagn. Stat. 1014 — 15, ch. 165, §§ 6, 10.) The judgment is affirmed; the other judges concurring.