Corbaley, Adm'r, v. State, ex rel. Holmes et al.

ordinary mode he must object before joining issue. It was there said by Howk, J.: "If, however, he" (the administrator) "appears fully to the action and demurs to or answers the claim or complaint, we think he thereby waives, as he has a perfect right to do, any objection to the claim on the ground that it was not filed in the clerk's office, nor placed on the appearance docket, as contemplated by said 66th section of said decedents' act."

It is proper to observe that, upon one point, Braxton v. The State, supra, has been overruled by The State, ex rel., v. Wyant, 67 Ind. 25, 33, but not on the point upon which it is here cited. The case of Stanford v. Stanford, 42 Ind. 485, relied upon by the appellant, is expressly overruled in Morrison v. Kramer, supra. The cases of Hyatt v. Mavity, 34 Ind. 415, and Noble v. McGinnis, 55 Ind. 528, can not be regarded as in point, for two reasons, (1) the action is against the administrator of the decedent and another person; (2) the motion in those cases was made before any demurrer or answer was filed. If the motion to dismiss had been made before an issue of law or fact had been tendered or joined, a different question would have been presented.

The objection, that the complaint does not show an appraisement of the land, is entirely destitute of merit. The guardian can not hold money obtained from the sale of his ward's land upon the ground that the proper appraisement was not made. To permit him to do so would be equivalent to rewarding him for a plain and express breach of duty.

We have not lost sight of the fact that process was not served upon the principal in the bond. This we do not regard as depriving the court of jurisdiction. The filing of the complaint invoked the jurisdiction of the court over the subject-matter. If there was any reason why it should not have extended over the person of the appellant, he should have availed himself of it before tendering and joining an issue of fact upon the merits of the action. The principle of Morri

Corbaley, Adm'r, v. State, ex rel. Holmes et al.

son v. Kramer goes much beyond what we need to do here to uphold the jurisdiction of the trial court.

The second paragraph of the answer alleges that the relators were indebted to their guardian in the sum of two thousand dollars for their board, clothing and maintenance, which sum appellant offers to set off against a like amount owing upon the claim of the appellees. We think the answer is bad. The general rule is, that it is the duty of a father to support his children. There is no fact stated in the answer under mention, which takes the case out of the operation of this rule. The party who affirmatively pleads must state facts avoiding the allegations which he confesses. There is nothing in this answer avoiding the facts confessed. It may be true that the father did support and maintain his children, the relators, and yet there be no ground upon which to base a claim for their maintenance and support. Prima facie, the father has no right to charge his children for their support and maintenance, and it is for him to show why this prima facie case shall not prevail against him. This showing must be made by stating facts, and not by stating mere general conclusions.

The substantive allegations of the third paragraph of answer are these: On the 30th day of January, 1856, Elizabeth Holmes, the wife of Jonathan L. Holmes, and the mother of the relators, died seized of the real estate described in the complaint; that at the time of her death one of the relators was seven years of age, one five years of age, one four years of age, and one three years of age; that, when the real estate. was sold, the relators were still very young, and wholly unable to earn their own support; that the father and guardian was very poor, and destitute of the means to support his children, and was unable to labor; that he was compelled to and did apply "to the boarding, clothing, supporting and educating of his minor children and wards the entire sum which he had realized from the sale of the said real estate." It is also alleged that the guardian refuses to make any claim for the VOL. 81.-5

Corbaley, Adm'r, v. State, ex rel. Holmes et al.

support of his said wards, but wrongfully allows them to compel payment of money which has been expended for their maintenance.

The answer, in all material respects, is within the principle deducible from the decision in Myers v. The State, ex rel., 45 Ind. 160. Following that case, it must be held good. Unless we overrule the doctrine of that case, we must hold the answer before us sufficient. The case is cited, with approval, in Glidewell v. Snyder, 72 Ind. 528. We do not feel warranted in overruling the case referred to, and are, therefore, constrained to hold that the court erred in sustaining appellees' demurrer to the third paragraph of the answer.

The appellant filed the following answer: "Said defendant, for further and separate answer to the claim of the relator John Holmes, says that the alleged cause of action, set forth in the complaint of said relator, did not accrue within three years next preceding the commencement of this action." The case of The State v. Hughes, 15 Ind. 104, relied on by the appellant, is not in point. That case decides that actions upon the bond of a guardian must be brought within three years after final settlement. In the present case, there has been no such settlement. Where there has been no report and no settlement, the plea of the three years statute is unavailing. Judgment reversed.

ON PETITION FOR A REHEARING.

ELLIOTT, C. J.-In the former opinion, we treated this case as within the rule in Myers v. The State, ex rel., 45 Ind. 160, and, notwithstanding appellees' elaborate argument, we have seen no reason to change our minds. We are satisfied that the principle there approved is a sound one. If children possess an estate, their father and guardian none, and both children and father are unable to work, the estate of the former may justly be applied to their education and maintenance. It is better that their estate should be used for their education and sup

McElhoes v. Dale.

port than that they should lack the ordinary comforts of life, or grow up without the important benefit of an education.

The proper way, undoubtedly, is for a guardian to apply to the court for an order directing the use of the money of the ward for his education and maintenance. We are not willing, however, to hold that, because he does not make such an application, he can not, when sued upon his bond, show in defence a just and reasonable application of the money of his ward to that purpose. We think the case of The State, ex rel., v. Clark, 16 Ind. 97, cited in Myers v. The State, ex rel., settles, and rightly settles, the principle that, although no allowance has been made for money so expended, the guardian may, in defence to an action on the bond, avail himself of such expenditures. The case of Haase v. Roehrscheid, 6 Ind. 66, establishes the rule that even a father will be allowed for the education of the child, if he is unable to himself educate it.

In cases where no allowance has been made, the burden is upon the guardian to show the inability of the father to support and educate the child, and the inability of the child to earn its own support, as well as the honest and reasonable use of money for that purpose.

Petition overruled.

No. 8677.

MCELHOES v. DALE.

NEW TRIAL.-Practice.-Recovery.-A motion for a new trial, on the ground that the finding is contrary to law, or to the evidence, presents no question in reference to the amount of the recovery.

From the White Circuit Court.

H. P. Owens and W. E. Uhl, for appellant.

McElhoes v. Dale.

WOODS, J.-The only error assigned is the overruling of the appellant's motion for a new trial. The causes stated in the motion for a new trial are:

1st. The finding of the court is contrary to law.

2d. The finding is contrary to the evidence.

3d. The finding is contrary to the law and the evidence. The entire brief of the appellant is addressed to the proposition that the amount of the recovery was too large by the sum of one hundred and fifty dollars, and interest thereon. from the date when it ought, as is claimed, to have been credited on the note sued on, it being conceded that the finding in favor of the plaintiff for a small amount is right. The causes alleged in the motion for a new trial, it is manifest, do not present the question discussed. In order to raise a question as to the amount of damages, or of the recovery, the new trial must be moved for on the ground of excessive damages, or for error in the assessment of the amount of the recovery. Code 1852, sec. 352; R. S. 1881, sec. 559; Spurrier v. Briggs, 17 Ind. 529; Rosenbaum v. Mc Thomas, 34 Ind. 331. Judgment affirmed, with costs.

ON PETITION FOR A REHEARING.

WOODS, J.-Counsel for the appellant now say that "any concession made in their original brief that anything is due on the note in suit, or that a judgment for any sum whatever should have been rendered in favor of the appellee, is not warranted by the evidence," and ask a rehearing, in order that the case may be considered from the standpoint so suggested.

We are not disposed to depart from the rule which forbids the raising of new questions, especially by the appellant, in a petition for a rehearing.

The petition overruled, with costs.