Moyer v. Brand , 102 Ind. 301 ( 1885 )

Zollars, J.

This is an action by appellee against appellants Moyer and Frelz, upon a joint promissory note which, on its face, purports to have been executed by them as joint makers. Each filed separate answers. One paragraph of Fretz’s answer is that the note was executed without any consideration. One paragraph of Moyer’s answer was, that as to him, the note is without consideration. To this answer the court below sustained a demurrer. This ruling presents the controlling question in the case. The rule is, that if a separate answer by one of several defendants goes to the merits of the case, and is such that the proof of it will defeat a recovery by the plaintiff, it will enure to the benefit of the other defendants. Sutherlin v. Mullis, 17 Ind. 19; Stapp v. Davis, 78 Ind. 128; Kirkpatrick v. Armstrong, 79 Ind. 384. Appellee, invoking the protection of this rule, contends that though the court may have erred in sustaining the demurrer to the paragraph of Moyer’s answer, it is a harmless error, because he could have made the same defence under Fretz’s answer. It is true that Fretz’s answer goes to* the whole cause of action, and, therefore, enured to the benefit of Moyer. Proof of that answer would have relieved him from all liability; but it does not follow from this that the sustaining of the demurrer to his answer is a harmless error. He had the right to answer and defend separately, and hence had the right to answer separately, that as to him the note is without consideration. This is a defence personal to himself, and such as he would not have had the right to make under Fretz’s answer.

The defendants might have been unable to make out their defence under that answer, which averred an entire want of consideration for the note, and yet Moyer might have been able to show that as to him, personally, there is an entire want of consideration. Appellee construes the paragraph to mean that no money consideration passed to Moyer, but that construction is not the proper one. The statement in the plea is that as to him, Moyer, the' note was executed without any consideration whatever.

¥e are forced to the conclusion that the court below erred in sustaining the demurrer to the first paragraph of Moyer’sanswer, and that the error is not a harmless one.

The case is before us without the evidence, upon the special finding of facts. We can not look to this special finding of facts to pronounce the error harmless, on the ground that the case has been disposed of upon its merits. If the answer had been allowed to stand, the evidence might have been different, and hence the special finding might have been different. Nor can we say from an inspection of the paragraph, or answer, and the record before us, that the error should be disregarded, because the paragraph embodied a sham- defence. There is nothing upon the face of either that would justify such a conclusion. Buskirk Pr. 191.

Filed May 25, 1885.

The paragraphs of Moyer’s answer are not all upon the-same theory’; but this would not justify this court in holding that any particular one is a sham,' since, in this State, parties-may plead different defences. If appellee regarded the defence set up in the first paragraph of Moyer’s answer as a sham defence, he should either not have demurred, or raised that question below in the manner provided in the statute. R. S. 1881, section 382. This section adopts the rule of practice as laid down in the cases of Beeson v. McConnaha, 12 Ind. 420, and Lowe v. Thompson, 86 Ind. 503.

A demurrer was also sustained to the second paragraph of Moyer’s answer. It is not necessary that anything should be decided as to the sufficiency of that paragraph, because the-same defence could have been made under the third paragraph, to which the demurrer was overruled.

For the error in sustaining the demurrer to the first paragraph of Moyer’s answer the judgment must be reversed; and although we find nothing in the record which entitled Eretz personally to a reversal of the judgment, yet, as an affirmance as to him might embarrass appellee in the further prosecution of his claim against Moyer, the judgment is reversed as to-both of the appellants, at the costs of appellee, and the cause is remanded, with instructions to the court below to overrule-the demurrer to the first paragraph of Moyer’s answer.