Spanagel v. Reay
Synopsis
Intervention.—An ex parte order may be made allowing an intervention to be filed.
Amendment to Answer.—When a party admits in his answer, under oath, a material allegation of the complaint, and the case is tried, and a judgment rendered, and a new trial afterwards granted by the Supreme Court; on the return of the cause to the Court below the defendant should not be allowed to amend his answer by changing the admission into a denial.
General Demurrer—Effect Of.—When a complaint contains several counts, one of which sets up a former judgment as estopping the defendants, a general demurrer does not raise the question of law, whether the judgment did estop the defendants.
Estoppel in Law.—If the transcript on appeal is silent as to what evidence was introduced, the appellant cannot raise the question that a judgment pleaded by the other party as an estoppel was not an estoppel in law.
By the Court: 1. The intervention of Townsend was proper.
2. The application to amend the answers of Beay and Ellis was correctly denied under the circumstances.
[6123]. The demurrers to the amended and supplemental complaints were general, and were not pointed at those portions of the pleadings in which the judgment against Treadway and Dellinger was set up to estop the defendants Reay and Ellis, and the question, as to whether the judgment did estop Reay and Ellis in point of law, could not arise upon a demurrer of that character.
• 4. Nor does it appear in anywise that the judgment below against Reay and Ellis was based upon the former judgment against Treadway and Dellinger, or that the latter judgment was read in evidence or referred to in anywise at the last trial of the cause, for the purpose of an estoppel or for any other purpose.
The transcript is entirely silent as to what evidence was given at the last trial, and the findings of fact appearing in the record support the judgment.
Judgment affirmed. Remittitur forthwith.
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