78 Ind. App. 658 | Ind. Ct. App. | 1922
— This action was originally instituted in September, 1917, in the Huntington Circuit Court, by Eberhart and Kenner, partners, against appellee Eyre-Shoemaker, Incorporated, under the law of the State of Delaware and with its home office in Philadelphia, Pennsylvania, and T. L. Eyre, a resident of the State of Pennsylvania, and the Chicago and Erie Railroad Company upon an account and in attachment and garnishment, with necessary affidavit and undertaking filed and
January 17,1919, the venue was changed to the Grant Circuit Court. Appellees each answered in several paragraphs, denying the claim of appellant, and also setting up, with other averments, that appellant had no bona fide title to the bonds on which he has sued; that he had acquired possession of the same through a fraudulent agreement with the First National Bank of Logansport, and had brought this suit against the appellees after the First National Bank had been fully paid the sum of money, which said bonds had been deposited to secure as collateral, and that there was a fraudulent agreement and arrangement between said appellant and said bank to place said bonds into the hands of appellant so that he might proceed against appellees and thereby seek to recover from them more than the bank itself could recover or was lawfully entitled to recover; that appellant was not in fact a good-faith purchaser for value of said bonds, and had full knowledge of all the facts and of the. fraudulent purpose of said First National Bank.
Appellant presents error of the court in overruling his demurrer to appellee company’s fourth paragraph of answer. This paragraph is, in substance, so far as here involved, that the said bonds were on April 2, 1908, loaned to said Hoopes, who then and there deposited them, and each of them, with said bank at Logansport, Indiana, as collateral security for a $2,000 note as hereinafter mentioned, and at a time when by their terms they were each and all past due. Said Hoopes had theretofore secured a $2,000 loan from said bank, for which he had given his note for sixty days, which note was discounted for said time, and at the end thereof the bank required Hoopes to pay off said note, and to obtain a new loan for that purpose, and that said Hoopes
Appellant had no right to file under in attachment and garnishment, and there was therefore no error in overruling his special motion for a new trial so far as it involved this question. Other reasons assigned therein are the same as in the general motion for a new trial. The question as to appellee’s right to file under is discussed by appellees in their brief with reference to their plea in abatement, and, had they properly presented the question by cross-error, their plea must have been sustained.
We find no reversible error. The judgment is affirmed.