142 Ind. 600 | Ind. | 1895
Appellee is an incorporated Building, Loan and Savings Association organized under the laws of this State. ' It commenced this action to recover a judgment against appellant Eugene P. Cummings, on a promissory note, and to foreclose a mortgage executed by him and his wife, a co-appellant herein, to secure the payment of the note.
The complaint alleges that on the 2nd of December, 1889, the defendant Eugene P. promised to pay to the plaintiff nine hundred dollars, with interest at six per cent. That there is due and unpaid thereon the sum of two hundred dollars, principal and interest. The pleading further avers the execution of the mortgage to secure the payment of the note, and that a copy of each is filed and made a part thereof, and judgment for two hundred dollars and foreclosure of the mortgage is demanded.
“Cannelton, Ind., Dec 2, 1889.
“$900.
“On or before March 29, 1893, I promise to pay without any relief from valuation or appraisement laws to the Citizens’ Building, Loan and Savings Association, or order, the sum of nine hundred dollars, together with interest thereon at the rate of six per cent, per annum from date, with attorney’s fees, said interest to be due and payable bi-weekly, in advance, to the cashier of said association; and on failure to pay any interest when due, then the whole principal and interest shall be due and payable. Eugene F. Cummings.”
The mortgage, which was executed of the same date as the note, after describing the premises and the note in question, stipulated that it was executed to secure the payment thereof, when the series of stock therein mentioned shall mature. It further recited “that the prihcipal of the note was the amount loaned to Cummings, on nine shares of unpaid stock of said association, held by him, of $100.00 each, and belonging to series number one; that the mortgage was also to secure the payment of all dues, fines, and penalties, and the due performance of all the duties of the mortgagor, as a member of said association until the series to which said stock belongs shall end, in accordance with the act under which the association was organized, and its constitution and by-laws; that in the event of the mortgagor’s neglect for a period of three months, to pay these fines, penalties, etc., the note shall then become due, etc., and upon a foreclosure of the mortgage the judgment shall include all interest, dues, fines, forfeitures, and all other indebtedness which shall be due and owing in connection with stock or loan.”
The trial court sustained'a demurrer to several paragraphs of appellant’s answer, and these rulings are assigned as error. But as the judgment must be reversed and remanded to the lower court, upon another ground, we may properly pass these alleged intervening errors without consideration, as probably appellee can (if the facts will warrant) so amend and frame its complaint as will better enable appellant, upon another trial, to present and have determined the questions involved under the facts alleged in the answer. Upon the trial there was a finding, by the court, that there was due to plaintiff, upon the note in suit, principal and interest, the sum of $60.21, and ten dollars attorney’s fees; and over a motion for a new trial, for causes assigned (among which were that the finding was not sustained by the evidence; that it was contrary to the latter, and also to law), judgment was rendered upon the finding for $10.21, and a foreclosure of the mortgage.
We have examined the evidence in the record, and it
The evidence, at least, must substantially correspond with and support the allegations, and be confined to the point in issue.
In the case at bar the complaint presented one theory, and the evidence disclosed a substantially different one; and viewed in the light of the rule above stated, the finding of the court was not sustained by the evidence, and was contrary thereto, and the motion for a new trial should have been granted.
We need not, and do not, decide the question whether, under the facts, had the action been based upon a proper complaint, appellee would have been entitled to recover.'
In the case of Wohlford v. Citizens’ Building Association, 140 Ind 662 (29 L. R. A. 177), this court held that the assessment made upon the members’ stock in that case, under the facts therein, was authorized, and that assessments warranted by the char
Eor the error in overruling the motion for a new trial, the judgment is reversed, and the cause remanded, with instructions to the lower court -to sustain the motion for a new trial, and to grant appellee leave, upon request, to file an amended complaint, and for further proceedings in accordance with this opinion.