Roff v. Harmon

¶1Appellant’s first assignment 6f error is that the court erred in sustaining the general and special demurrers to the defendant’s answer. Section 3403, Mansf. Dig. (section 2337, Ind. T. Ann. St. 1899), provides as follows: “Any person who shall lose any money or property at any game or gambling device, or any bet or wager whatever, may recover the same by action against the person winning the same; but such suit shall be instituted within ninety days after the paying over of the money or property so lost.” The defense interposed by the defendant below, Roff, to prevent the recovery by plaintiff below, Harmon, on the note indorsed and put up by said Roff, as stakes, is virtually- and in effect an attempt to recover the property lost by him on the race. That he might have recovered this note by proper action within 90 days, as provided in the above section of the statute, there is no doubt, and we think that it is equally clear that he has lost his right to recovery of the note by delay to bring such action; but the demurrer to defendant’s answer was not properly sustained by the court below. Section 3406, Mansf. *94Dig. (section 2340, Ind. T. Ann. St. 1899), provides: “All judgments, conveyances, bonds, bills, notes, securities and contracts, where the consideration or any part thereof, is money or property won at any game or gambling device or any bet or wager whatever, or for money or property lent to be bet on any game or gambling device, or any sport or pastime whatever, shall be void." The attempt is made in this action to charge the defendant on his contract of indorsement of the note. The consideration of the indorsement of the note, being a debt, makes the indorsement a gambling contract, and no recovery or valid judgment can be had against the indorser of the note, the appellant. The demurrer to the defendant’s answer should have been overruled, and the is - sues submitted to a jury. ■ Cause reversed and remanded, with directions to court below to overrule the demurrer to the answer, and proceed with the case according to law.