Skeen and Wife v. Muir and Others.

term at which the new trial was granted, over the objection of plaintiffs; and this is assigned for error.

Section 602 of the code provides, that "if the application for a new trial is made after the close of the term at which the judgment is rendered, the party obtaining the new trial shall give the opposite party ten days notice thereof before the term at which the action stands for trial." The notice given before the new trial was granted was not required by law, was a nullity, and gave the party giving it no rights; nor did it impose any duty or obligation on the adverse party. The statute clearly contemplates that notice shall be given after the new trial is obtained. The party against whom the new trial is granted is not obliged to prepare for trial until the order is entered and he has ten days notice before the next term. Nor can the party obtaining the new trial be compelled to go to trial at the term at which the new trial is granted. In the case of Murray v. Kelly, 27 Ind. 42, the court say, "A new trial under this provision is a matter of right, and no notice to the adverse party is required." For this error the case must be reversed.

A motion was made at the proper time to strike out the amendment to the complaint and parts of the original complaint, and the court struck out from the original the following:

"And the plaintiffs say that in consideration of the premises, at the date of the said title bond, it was stipulated and agreed between the parties that said Mary Skeen should take possession of said real estate and occupy and enjoy the same until the time specified in said bond for the conveyance of said real estate by said John W. Muir to the said Mary Skeen. And plaintiffs aver that said Mary Skeen took possession of said real estate under and by virtue of said agreement, and still holds the possession of the said land."

This was excepted to and is assigned for error. We think the court erred in striking out these words. It was not an attempt to vary, alter, or inject anything into the title bond by parol. It only, and we think very properly, shows that

Skeen and Wife v. Muir and Others.

the plaintiffs were in lawful possession of the land by the consent of the vendor, John W. Muir; nor was it irrelevant or surplusage; nor was the second paragraph of, or amendmendment to, the complaint irrelevant to the subject matter of the suit as stated in the original complaint; and though it may be defective in some respects, it ought not to have been stricken out. The motion to strike out does not perform the office of a demurrer. Port v. Williams, 6 Ind. 219.

The defendant John W. Muir demurred separately to the complaint because it did not state facts sufficient, and because he was improperly joined as a defendant, which was sustained by the court and excepted to. This was error. The complaint shows that Muir had given a title bond to the plaintiffs and put them in possession of the land; that they still retained the same; that he had received as part payment therefor six hundred and twenty-five dollars; that by fraud he had caused it to be sold from under them; that he now holds the equitable title under said sale, though another holds the legal title, which was purchased with the money of Muir; and that it is held in trust for him. All of the de-fendants joined in a demurrer to the complaint because it did not state facts sufficient, and because John W. Muir was improperly made a party, and because Elma Muir was improperly joined as a party-defendant. The court sustained this demurrer. This was error. It should have been overruled. A joint demurrer by two or more parties to a complaint which is good as to some of them, is bad as to all, and should be overruled, because a pleading bad as to part is bad as to all the parties to it. Bicknell Civil Pr. 99; Estep v. Burke, 19 Ind. 87; Pace v. Oppenheim, 12 Ind. 533. It follows that the court erred in dissolving the injunction and rendering judgment against the plaintiffs.

The appellees assigned cross errors, that the court erred in refusing to dissolve the temporary injunction, and rendering judgment for the plaintiffs on the default of the defendants and trial by the court. These are not well taken, and are sufficiently answered in the foregoing opinion.

Hall v. Hall and Another.

The judgment is reversed, at the costs of appellees; and the cause is remanded for further proceedings in accordance with this opinion.

E. P. Ferris, H. T. Lipperd, H. W. Harrington, and M. K. Rosebrough, for appellants.

F. Gavin and F. D. Miller, for appellees.

HALL V. HALL and Another.

SUPREME COURT.-New Trial.-Small Excess of Damages.-The Supreme Court will not reverse a judgment because of a very small excess of damages. EVIDENCE. Declarations of Agent.-The declarations of an agent are not admissible in evidence in favor of his principal, either before or after the death of the agent. SAME.-Admissions.—Contrary Declarations.—Where the statements of a party have been proved, as admissions, and not with a view to impeach him as a witness, he will not for that reason be allowed to prove his own statements at other times, of an opposite character and in harmony with his own testimony. PRINCIPAL AND SURETY.—Mutual Sureties.—Where a promissory note is executed by two persons, the consideration going one-half to each of them, as between themselves each may be treated as principal for one-half of the debt and surety of the other for the other half.

APPEAL from the Monroe Common Pleas.

WORDEN, J.-This was an action by Permelia Hansford, executrix of the last will of John Hansford, deceased, against the appellant, Benjamin Hall, and the appellee John Hall, upon a note executed by said Benjamin and John Hall to said John Hansford in his lifetime, for the sum of one hundred dollars.

Each of the defendants set up that he was principal on the note to the amount of fifty dollars thereof, and as to the residue he was only surety; and that he had paid his share or more of the note; and asking that whatever might be

Hall v. Hall and Another.

found due upon the note might be levied of the property of the other before levying upon his own.

The cause was tried by the court, who found for the plaintiff and assessed her damages at fifty-two dollars and thirtytwo cents; and judgment was accordingly rendered in her favor for that sum against the said defendants, John and Benjamin Hall; and the court further ordered that, of the sum thus adjudged to be due the plaintiff, the said John Hall pay the sum of thirty-four dollars and eighty-two cents, and that said Benjamin Hall pay the sum of seventeen dollars and fifty cents.

The said Benjamin appeals from the judgment and order. We find no error in the cause that affects the judgment in favor of the plaintiff against the defendants below. No error is claimed affecting her, except that the damages are excessive. The amount found due may have been something. more than an exact computation would have made it, but the excess is trifling, and we are not disposed to regard it. We apply the maxim, de minimis non curat lex. We are more inclined to this as the cause was continued from one term to another, after finding and before judgment, without allowing interest for the intervening time.

The case, as between the appellant and the appellee John Hall, presents other questions.

The note in suit appears to have been given for money borrowed by the two Halls, each receiving fifty dollars and uniting in a note for the whole sum. There was an indorsement of a credit on the note of sixty dollars and interest, of the date of May 22d, 1865, and the principal question between John and Benjamin is as to which of them paid the amount thus credited. The evidence tends to show that the amount thus paid was paid by one Noel Hall, a brother of John and Benjamin, who was deceased at the time of the trial. Each of the defendants claimed that he had furnished Noel with that amount, or more, to pay for him on the note; and each claimed to be entitled to the credit.

Hall v. Hall and Another.

On the trial, John Hall testified, amongst other things, that in May, 1865, he gave his brother, Noel Hall, sixty odd dollars, to pay his share of the note and interest. He was then asked by his attorneys whether Noel Hall ever told him that he paid the money. This question was objected to by Benjamin, because it was mere hearsay, &c., but the objection was overruled, and John testified that Noel told him that he, Noel, had paid the money. This was error. The evidence was mere hearsay and inadmissible. We have no brief for the appellee John Hall, and are not advised upon what ground the evidence was admitted. If Noel is to be regarded as having been the agent of John, his declarations would not, therefore, be evidence in favor of his principal, either before or after the death of the supposed agent. The declarations of a man's agent can no more be evidence in his favor than his own declarations.

During the further progress of the trial, it was proved by a witness that Benjamin said that John had paid off his share of the note. Upon this, Benjamin, at the proper time, offered to prove his own statements, at other times, of an opposite character, and in harmony with his testimony on the trial. This was ruled out, and exception was taken. We think there is nothing in this point. The statements of Benjamin were mere admissions, and not proved with a view to his impeachment as a witness.

The finding of the court, on the evidence, can hardly be sustained. The credit for the payment of the sixty dollars endorsed on the note, it would seem from the amount required to be paid by each of the defendants, was allowed by the court in part to each of them, and we find nothing in the evidence to warrant this. As the evidence stood, it seems to us that either the one or the other of the defendants was entitled to the full benefit of the credit, and the difficulty of determining to which it belonged was no valid reason for giving each, in part, the benefit of it.

It is not at all clear that, as between the payee of the note in suit and the makers, the latter are not in every sense prin