Walker, Administratrix, v. Heller et al. estate of appellant's intestate, or any promise or agreement. by the intestate in his lifetime to pay Marsh any sum of money on account of the walnut lumber, or on any other account? Each of these questions, it seems to us, must be answered in the negative. As against Marsh, it must be held, we think, that the first agreement, in 1874, between him and Meredith Walker, in relation to Walker's application of the agreed price of the walnut lumber, was abrogated and superseded by their subsequent agreement of the 10th day of June, 1880, of and concerning the same subject. In his complaint the appellee Marsh has declared upon this subsequent agreement, and he could not be heard to say in this case that such agreement is invalid and void for the want of a sufficient consideration, or for any other cause. But if it could be said that such subsequent agreement was, for any cause, inoperative and void as to appellee Marsh, and that notwithstanding such agreement, the money mentioned therein, or some part thereof, constituted a debt to Marsh from the estate of the decedent Walker, which Marsh might recover of such estate, the complaint would still be bad on demurrer, because it failed to allege that such money, or any part thereof, was then due the appellee Marsh from the estate of the decedent, and remained unpaid. Although the statute requires only "a succinct and definite statement" of the claim against a decedent's estate (section 2310, R. S. 1881), yet it has been held, and correctly so, we think, that this statement must contain sufficient facts to show prima facie, at least, that the estate is indebted to the claimant or plaintiff, or it will be held bad on demurrer for the want of such facts. Huston v. First Nat'l Bank, 85 Ind. 21; Moore v. Stephens, 97 Ind. 271; Windell v. Hudson, 102 Ind. 521. Certainly, where such statement shows a cause of action, if any, in favor of some person other than the claimant or plaintiff in the case, it must be held bad on demurrer for the want of sufficient facts. Pence v. Aughe, 101 Ind. 317; Wilson v. Galey, 103 Ind. 257. We conclude, Walker Administratrix, v. Heller et al. therefore, that the trial court erred in overruling appellant's demurrer to the claim or complaint of the appellee Marsh. Appellant's counsel next complain in argument of the alleged insufficiency of what may be called the cross-claim of the appellee Moses Heller, against the appellant, as administratrix of the estate of Meredith Walker, deceased, and the original claimant, Thomas L. Marsh. On its face this socalled cross-claim purports to be the verified petition of Moses Heller to be admitted as a party defendant to Marsh's claim. against the appellant. After Heller had been made a party defendant, his petition to that end seems to have been treated below, both by court and counsel, as constituting his crossclaim, and we will so consider it. In this cross-claim Heller set out the dealings between Meredith Walker and Thomas L. Marsh, and his connection therewith, substantially in the same language and in the same order as such dealings are stated in the claim of appellee Marsh. As we have given full summary of the facts stated in Marsh's claim, of course these facts need not be repeated in this connection, but it should be noted that the appellee Heller, in his cross-claim, does not set up or even allude to the second agreement between Marsh and Walker, on the 10th day of June, 1880, as stated in Marsh's claim, in relation to the application of the agreed price of the walnut lumber. After setting out the first agreement between Marsh and Walker, entered into, as alleged, about the beginning of the year 1875, as the same is stated in Marsh's claim, Heller claimed and asked the court to declare that, under such agreement, Meredith Walker became the trustee of Heller for the said sum of money so received by Walker from Marsh on the walnut lumber transaction; and that the appellant, as administratrix of Walker's estate, should be required to pay into court for the use of Heller an amount equal to the sum of money, and interest, so held by Walker as such trustee at the time of his death. The sufficiency of this cross-claim was not questioned below by demurrer or by a motion in arrest of judgment. But Walker, Administratrix, v. Heller et al. the appellant has here assigned as error, that Heller's crossclaim does not state facts sufficient to constitute a cause of action. In discussing this alleged error the first objection urged by appellant's counsel to the sufficiency of the cross-claim is, that it is nowhere alleged therein that the decedent Walker had and retained any part of the $700 sued for at the time of his death, nor that the appellant, as administratrix, had any part of such sum after the death of Walker, nor at the time of the filing of such cross-claim. We do not think that this objection to the cross-claim is well taken. It was alleged therein that Walker died on the 10th day of January, 1882, without having paid to Heller the money placed in his hands by Marsh, or any part thereof, and that Heller's claim was just, due and unpaid. These allegations are certainly sufficient, after verdict and judgment, to obviate the first objections of appellant's counsel to Heller's cross-claim. Appellant's counsel also insist that Heller's cross-claim is insufficient, because it is not averred therein that any demand was ever made upon Walker, in his lifetime, nor upon the appellant, as administratrix of his estate, for the application of the $700 as required by the terms of the aforesaid trust. If it be conceded that an averment of such demand would have been necessary, if Heller had brought suit against Walker in his lifetime, yet it is settled by the decisions of this court that no such averment was necessary in the cross-claim filed by Heller against Walker's estate. In Wright v. Jordan, 71 Ind. 1, the court said: "All claims against an estate, whether contingent or absolute, have to be filed against it in the proper court, and the filing of such a claim as the one before us constitutes a sufficient demand against the administrator." To the same effect see the following cases: Trimble v. Pollock, 77 Ind. 576; Emerick v. C'hesrown, 90 Ind. 47; Stapp v. Messeke, 94 Ind. 423. No other objections are urged by appellant's counsel to Heller's cross-claim, and we think it is sufficient to withstand appellant's assignment of error thereon. 104 336 134 430 134 573 134 584 135 666 136 411 104 336 The American Insurance Company r. Gibson et al. The next error complained of in argument is the overruling of appellant's motion for a new trial. This error, we think, is well assigned. Without commenting on the evidence, which would hardly be proper in view of a probable, or at least possible, new trial of the cause, we may say without impropriety that, in our opinion, the evidence fails to sustain the findings of the trial court. It is not a case of the weight of evidence, but of an absolute failure of evidence to support the findings on every material point; but, if it were otherwise, we would be required under the practice of this court to reverse the judgment and award a new trial of the cause, because the record affirmatively shows that the findings and judgment below rest as well upon Marsh's claim, to which a demurrer was erroneously overruled, as upon Heller's crossclaim. In such a case the judgment must be reversed and the cause remanded for a new trial. Pennsylvania Co. v. Holderman, 69 Ind. 18; Ethel v. Batchelder, 90 Ind. 520; City of Logansport v. La Rose, 99 Ind. 117. The judgment is reversed, with costs, and the cause is remanded, with instructions to sustain the demurrer to Marsh's claim, and the motion for a new trial and for further proceedings. Filed Oct. 29, 1885; petition for a rehearing overruled Dec. 31, 1885. No. 12,271. 154 27 104 170 246 THE AMERICAN INSURANCE COMPANY v. GIBSON ET AL. -! 336PLEADING. Complaint.-Transcript of Judgment.-Lien on Real Estate.—Foreclosure of Lien.-Defence or Disclaimer.—A complaint, averring that the plaintiffs became the owners of certain real estate through the foreclosure of a mortgage executed in 1874, and the purchase of the same by the plaintiffs' ancestor on the sale under the decree in 1879; that in 1877 the defendant filed a transcript of a judgment against the mortgagor in The American Insurance Company v. Gibson et al. the office of the clerk of the circuit court of the proper county, and the same became a junior lien upon the real estate covered by the mortgage, and praying that said judgment lien be foreclosed and forever barred, etc., sufficiently shows that the defendant was asserting such a lien or claim against the land as called for a defence or disclaimer. JUDGMENT.-Filing Transcript in Clerk's Office.-Justice of the Peace.-Lien. -Notice.-As between parties to a judgment before a justice and others with actual notice, a transcript thereof is a lien on the real estate of the defendant in the county from the time of its filing in the clerk's office. PRACTICE. Defect of Parties.- Demurrer.- Answer.-A complaint which does not show upon its face that there is a defect of parties is not bad on demurrer for that cause, and if such defect exists it should be shown by answer. REVIEW OF JUDGMENT.-Practice Same as on Appeal.-The errors that may be made available in an action to review a judgment are the same that may be made available on appeal from the judgment. SAME.-Objections to Judgment Must be Made in Trial Court.-Default.-If no objection be made to a judgment, and no motion made to modify it in the trial court, no objection can be made available upon appeal, nor in an action to review, however erroneous the judgment may be; and this rule has been applied to cases where judgment was rendered by default. From the Marion Superior Court. W. H. Ripley, for appellant. F. Rand and J. M. Winters, for appellees. 28 ZOLLARS, J.-On the 21st day of September, 1882, appellees filed a complaint in the court below against appellant. The substantial averments of that complaint may be epitomized as follows: In April, 1874, William John Wallace was the owner of a tract of land, of thirty-seven acres, and mortgaged it to Andrew Wallace to secure a loan of $5,000, evidenced by five promissory notes. The mortgage was duly recorded, and after record, together with the notes, was duly assigned to John Wymond. Payment not having been made according to the stipulations in the notes and mortgage, Wymond foreclosed the mortgage in April, 1879, and recovered a personal judgment against the mortgagor for the amount. of the notes due. The land was sold under the decree on the 7th day of June, 1879, was purchased by Wymond, and he VOL. 104.-22 |