Bray v. Sewall
Bray v. Sewall
Opinion of the Court
By supplemental petition, plaintiff interposed a general demurrer, and 17 special exceptions to the answer of defendants Bray and wife. The special exceptions were to the effect that the answer was too general and not sufficiently specific to put plaintiff upon notice or advise him of what defendants would undertake to prove in support thereof, and were largely conclusions and not facts; that it was immaterial to any issue in the case whether Scarborough assumed the payment of the two notes sold to Sweeney, no copy being attached and no facts alleged further than mere conclusion of the pleader to show whether the payment of said Sweeney notes was assumed by Scarborough or not; and that it was immaterial, so far as plaintiff was concerned, whether Scarborough assumed or was obligated to defendants to pay said notes or not; that it affirmatively appeared from the answer that plaintiff was in no way responsible for Scarborough’s failure to pay the interest on said notes; and that the allegation of such assumed duty was no defense to plaintiffs’ cause of action; that Exhibit A, attached to defendants’ answer and made a part thereof, shows that it was optional with Scarborough to pay said interest just as it was optional with defendant Bray to take said property; and that the answer did not show that plaintiff was in any way responsible for the default of either Scarborough or Bray; that it was immaterial that Bray did not know the semiannual interest had not Been paid on said notes; and that the facts stated in the answer did not excuse Bray from the payment of the interest or see that Scarborough had done so; that the allegation of tender of the interest by defendants to plaintiff are -insufficient as to date of tender, amount of tender, and the answer does not show actual payment into court of any interest or principal, and no offer is made to abide the result of the controversy and make good the alleged tender and thus prevent the plaintiff declaring said notes due and proceeding to foreclose his lien on the property; that the answer does not show that the purchase of said notes by plaintiff was in any respect for the use or benefit of defendants; that the answer shows that defendant was a resident of the county in which the property was situated, on which a foreclosure of the lien was made, and no necessity is imposed upon plaintiff by law to notify defendant personally of said foreclosure sale; that the defenses pleaded in the answer constitute no defense *797 to plaintiffs’ suit for tlie unpaid balance of said two notes, but is a collateral attack upon tbe sufficiency of tbe sale of said property by the trustee under the deed of trust. The several exceptions asked that the several immaterial matters pointed out be stricken out. We have stated only the substance of a few of the special exceptions, but possibly enough to show several of the issues of law presented. The general demurrer ivas by the court 'overruled; but the 17 special exceptions were all sustained, and the defendants declining to amend, even to the extent of eliminating the immaterial matter, judgment was entered for plaintiff, from which this writ of error is prosecuted.
Assignments numbered third, fourth, fifth, and sixth are also grouped and unnumbered, and, while each of said assignments complain of the action of the trial court in sustaining the 17 special exceptions to the original answer, the various exceptions each present various questions of law, and cannot be grouped so as to show a single proposition. In our opinion, the brief filed by plaintiffs in error does not conform to the rules for briefing cases. The assignments are entirely too general in complaining of- the action of the court in sustaining the 17 special exceptions to their original answer. While many of the exceptions contain in part repetitions of other exceptions, they each present various questions of law, and point out much immaterial matter, and ask that same be stricken out. The statement following the proposition under the first and second assignments of error, which are grouped, does not refer to the transcript, and in our opinion is not germane to the proposition, and there is no statement under the assignment pointing out the part of the answer to which the exception refers, or setting out or giving the substance of plaintiffs’ exceptions, so as to show that the exceptions present a single proposition of law. Each exception presents a different ground of objection, and each raises distinct questions of law and cannot be grouped, except those that reiterate the same proposition. The same criticism applies to the third, fourth, fifth, and sixth assignments of error. We think several of defendants’ exceptions should have been sustained and much of the immaterial matter found in defendants’ answer should have been stricken out, which defendants in the action refused to do. It could serve no purpose to point. them out here. We have stated the issues fully, so that the points of objection to the answer and to the immaterial matter contained in the answer, raised and pointed out by the exceptions, could be seen without the necessity of discussing them severally. We think the court was not in error in rendering judgment for plaintiff.
Judgment is affirmed.
Reference
- Full Case Name
- BRAY Et Al. v. SEWALL Et Al.
- Cited By
- 1 case
- Status
- Published