TaiLexi AI U.S. Case Law

Goldsmith v. Chipps

Goldsmith v. Chipps, 55 N.E. 855 (Ind. 1900)
Download
Format
Include

Star paging (*137) is kept for pin cites.

Court
Indiana Supreme Court · State Highest Courts
Decided
January 5, 1900
Docket
No. 19,009
Judges
Monks
Citations
55 N.E. 855154 Ind. 281900 Ind. LEXIS 6
Disposition
Affirmed.
Headnotes
Practice.— Pleading. — Defective Demurrer. —Abatement.— Where the facts stated in an answer in abatement were insufficient to abate the action, the action of the court in sustaining a demurrer thereto was harmless, although the demurrer was so defective in form that it could have been disregarded by the court, pp. 28, 29. Pleading. — Demurrer to Answer in Abatement. — A demurrer to an answer in abatement does not search the record, and cannot be carried back and sustained to the complaint, p. 29.
Summary
Prom the Vanderburgh Superior Court.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Monks

Text extracted by OCR from a scanned original; check the original for exact wording.

.Monks, J.

Appellee recovered a judgment and decree of foreclosure in the court below.' Appellants Goldsmith and Goldsmith filed, at the proper time, an answer in abatement in two paragraphs, and appellee’s demurrer thereto was sustained as to the first paragraph, and overruled as to the second. Appellants insist that the court erred in sustaining the demurrer to the first paragraph of the answer in abatement for two reasons: “(1) The- demurrer is a joint demurrer, and challenges the answer in abatement as an entirety, and not each paragraph separately; (2) the form of the demurrer is deficient in this, — that the grounds are that the facts stated in neither of said paragraphs of said plea are sufficient to avoid plaintiff’s complaint herein filed.”

It will be observed that appellants do not claim that the facts stated in said first paragraph of answer in abatement were sufficient to abate the action, but only that the same was not, for the reason stated, challenged separately by the demurrer filed. If the facts stated in said first paragraph were insufficient to abate the action, as we think they-were, and which appellants admit by-their failure to urge the *29 sufficiency thereof, the action of the court in sustaining the demurrer thereto was harmless, even if the demurrer failed to challenge separately the sufficiency of said paragraph, and was so defective in form that it could have been disregarded by the court. Wayne Pike Co. v. Hammons, 129 Ind. 368, 378 ; Blue v. Capital National Bank, 145 Ind. 518 ; Board, etc., v. Gruver, 115 Ind. 224, 231 ; Palmer v. Hayes, 112 Ind. 289, 291 ; Hildebrand v. McCrum, 101 Ind. 61, 64, 65 .

A demurrer to an answer in abatement does not search the record, and can not be carried back and sustained to the complaint. Indiana, etc., R. Co. v. Foster, 107 Ind. 430, 432 , and cases cited; 6 Ency. Pl. & Pr. 332.

Judgment affirmed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 10 cases

View all citing references →
1902: 11906: 21907: 11910: 11911: 11912: 11915: 11921: 11924: 119022026peak 1906 · 2

Relies on it most ⓘ

  1. Bluffton v. Moore-Mansfield Construction Co.109 N.E. 406 (Ind. Ct. App. 1915)
  2. Hall v. State99 N.E. 732 (Ind. 1912)
  3. City of Huntington v. Amiss79 N.E. 199 (Ind. 1906)
  4. Kempton Hotel Co. v. Ricketts132 N.E. 303 (Ind. Ct. App. 1921)
  5. Washington Hotel Realty Co. v. Bedford Stone & Construction Co.143 N.E. 156 (Ind. 1924)
  6. Duffy v. England96 N.E. 704 (Ind. 1911)

Most recent

  1. Washington Hotel Realty Co. v. Bedford Stone & Construction Co.143 N.E. 156 (Ind. 1924)
  2. Kempton Hotel Co. v. Ricketts132 N.E. 303 (Ind. Ct. App. 1921)
  3. Bluffton v. Moore-Mansfield Construction Co.109 N.E. 406 (Ind. Ct. App. 1915)
  4. Hall v. State99 N.E. 732 (Ind. 1912)
  5. Duffy v. England96 N.E. 704 (Ind. 1911)
  6. Darnell v. State90 N.E. 769 (Ind. 1910)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 6

DepthCaseCited by
Wayne Pike Co. v. Hammons, 27 N.E. 487 (Ind. 1891) 47
Blue v. Capital Nat'l Bank, 43 N.E. 655 (Ind. 1896) 29
Palmer v. Hayes, 13 N.E. 882 (Ind. 1887) 25
Bd. of Comm'rs v. Gruver, 17 N.E. 290 (Ind. 1888) 14
Hildebrand v. McCrum, 101 Ind. 61 (1885) 13
ndiana, Bloomington & Western Ry. Co. v. Foster, 8 N.E. 264 (Ind. 1886) 11

Keyboard shortcuts

/Focus the search box
j kNext / previous result
EnterOpen the selected result
xAdd / remove the selected result from the download list
n pNext / previous search term in a case
cCopy the citation of the current case
+ −Larger / smaller reading text
?Show this list