Opinion
No. 27,775.
Filed September 18, 1942.
1. APPEAL — Pleadings — Demurrers Sustained — Determination of Error — Court Not Limited to Defects Pointed Out in Memoranda. — In order to give force to the statute providing that no judgment shall be reversed where it shall appear that the merits of the cause have been fairly determined in the court below, the Supreme Court, in determining whether reversible error was committed in sustaining demurrers, is not limited to the defects pointed out in the memoranda. p. 334.
2. CONTRIBUTION — Actions — Pleading — Recovery of Balance of Drainage Lien Assessment — Ownership of Real Estate Not Alleged. — A complaint by an administratrix to recover an excess amount of money paid by her to discharge the balance of a drainage lien assessment against real estate of appellant's decedent was insufficient to state a cause of action against the widow of a decedent who was a judgment defendant in the drainage proceeding and who died the owner of real estate upon which the judgment was a lien, since it was not shown that the widow was the owner of any real estate belonging to such decedent at the time of his death. p. 334.
3. CONTRIBUTION — Actions — Pleading — Recovery of Balance of Drainage Lien Assessment — Failure of Allegations as to Particular Defendant. — A complaint by an administratrix to recover an excess amount of money paid by her to discharge the balance of a drainage lien assessment against real estate of appellant's decedent was insufficient to state a cause of action against an alleged judgment defendant who was not mentioned in the complaint other than in the caption and in the prayer, and against whom there were no allegations establishing liability. p. 334.
From the DeKalb Circuit Court; William P. Endicott, Judge.
Action by Pearl Keesler, administratrix of the estate of Phillip Rigg, deceased, against William H. Loy and others to recover a sum paid by plaintiff in excess of her decedent's proportionate share of a personal judgment arising out of the establishment of a public drain. From a judgment for defendants, entered after their separate demurrers to the complaint were sustained and plaintiff refused to plead over, plaintiff appealed. (Transferred from the Appellate Court under § 4-215, Burns' 1933, § 1359, Baldwin's 1934.)
Affirmed.
Atkinson Sanders, of Auburn, for appellant.
Mountz Mountz, of Garrett, for appellees.
This is an appeal from a judgment rendered against the appellant upon her refusal to plead over after the appellees' separate demurrers to her complaint had been sustained. There were originally 7 defendants but the action was dismissed below as to all except the appellees.
The allegations of the complaint may be briefly summarized. It disclosed that the appellant's decedent joined with 52 unnamed persons in a petition for the establishment of a public drain, resulting in a personal judgment against said petitioners for $11,500. Each of said petitioners, other than the defendants herein, paid $250 toward the satisfaction of said judgment, but the appellant was required to sell her decedent's real estate and discharge the balance of said lien, by reason whereof she expended $1330 in excess of the amount paid by any other petitioner or party to this action. The appellee Anna M. Capen is the widow of Robert C. Capen, who was a judgment defendant in said drainage proceeding and who died the owner of real estate upon which said judgment was a lien. The appellee Loy is not mentioned in the complaint other than in the caption. The complaint concluded with a prayer for a judgment against the appellee Loy and for an execution against his real estate and for an order for the sale of the real estate owned by Robert C. Capen at the time of his death.
In determining whether reversible error was committed in sustaining the demurrers we are not limited to the defects pointed out in the memoranda. Bruns v. Cope (1914), 182 1. Ind. 289, 105 N.E. 471. Poer, Trustee, v. State, ex rel. (1919), 188 Ind. 55, 121 N.E. 83. Washington Hotel Realty Co. v. Bedford Stone, etc., Co. (1924), 195 Ind. 128, 143 N.E. 156. This rule is necessary to give force to the statute which provides, among other things, that no judgment shall be reversed where it shall appear that the merits of the cause have been fairly determined in the court below. § 2-3231, Burns' 1933, § 505, Baldwin's 1934, Acts 1881 (Spec. Sess.), ch. 38, § 659, p. 240.
The complaint was bad for a number of reasons. It is enough to point out that there was no showing that the appellee Anna M. Capen was the owner of any real estate belonging to 2, 3. Robert C. Capen at the time of his death and that there was a total absence of any allegations establishing liability on the part of the appellee William H. Loy.
The judgment is affirmed.
NOTE. — Reported in 43 N.E.2d 615.