87 Ind. 302 | Ind. | 1882
Suit by The Travellers Insurance Company against Edward T. Allen and Mariah H. Allen, his wife, Fa~ bius M. Finch and Nancy Finch, bis wife, Preston Clearwaters and Tbe Indiana National Bank, to foreclose a mortgage. The plaintiff averred that it was a corporation organized and existing under the laws of the State of Connecticut, and that it had complied with all the laws necessary to entitle it to transact business, through its agents, in this State; that, on the 24th day of May, 1875, The Railway Passengers Assur
At a subsequent term, and after process had been served on the remaining defendants, The Indiana National Bank made default. Finch and wife appearing to the action, demurred to the complaint. Their demurrer was, however, overruled. They then answered in seven paragraphs, the third being the general denial, and the seventh in the nature of a cross complaint. Demurrers were sustained to the first and second paragraphs, and issue was joined on the fourth, fifth, sixth and seventh paragraphs. The issues thus formed between the plaintiff on the one side, and Finch and wife on the other, were tried by the court, resulting in a general finding for the plaintiff, and, over a motion for a new trial, a decree of foreclosure of the mortgage was also entered against Finch and wife upon the finding. Finch and wife are the only appellants, and their complaint here is that the court below erred:
First. In rendering judgment in favor of the appellee instead of the appellants.
Secondly. In computing attorney’s fees in favor of the appellee, and in rendering judgment therefor.
Thirdly. In overruling their motion for a new trial.
Fourthly. In sustaining the appellee’s demurrer to the first and second paragraphs of their answer.
The first error assigned is too general, and presents nothing for decision in this court. King v. Wilkins, 10 Ind. 216; Henry v. Coats, 17 Ind. 161; Hamrick v. Danville, etc., Gravel Road Co., 41 Ind. 170; Frazier v. Harris, 51 Ind. 156.
There is in the record what purports to be a bill of exceptions, signed “D. R. Eckels, special judge,” but there is nothing showing his authority to preside in the cause, or that he did preside in it; on the contrary, the record shows that the first proceedings in the cause were had before Hon. Solon Turman, the regular judge of the circuit of which Putnam county forms a part, and there is no notice of any change of judges during the progress of the cause. Under "these cir
There is, therefore, nothing before us showing any authority in Judge Eckels to sign the bill of exceptions copied into the record; nor is there any thing from which such authority might be lawfully inferred; consequently, the matters relied upon in support of the second and third assignments of error are not properly in the record. Besides, the question attempted to be raised by the second assignment of error was based upon an alleged proceeding which was only properly assignable as a cause for a new trial.
The first paragraph of the answer of the appellants was as follows: “ Come now Fabius M. Finch and Nancy Finch, and, severally answering the complaint herein, aver that the plaintiff’s assignor, the Railway Passengers Assurance Company, is a foreign corporation, organized under the laws of the State of Connecticut, and has not complied with the law of the State of Indiana, approved June 17th, 1852, entitled, 'An act respecting foreign corporations and their agents in this State;’ that the agent of said Railway Passengers Assurance Company has not filed for said company, nor has any one on behalf of said company filed, his certificate in compliance with the first section of said act; nor has such agent, said company, or any one on its behalf, filed the order or resolution required by the second section of said act, or anything in the nature of such order, resolution or authority. Wherefore defendants ask that this action abate, and this answer they verify.”
Section 2 further enacts, that agents for such corporations,, before commencing to act as such, shall procure and file with, the clerk of the circuit court of the county where they propose doing business, a duly authenticated order, resolution,, or other sufficient authority, adopted or.executed by the board of directors or managers of such corporations, authorizing citizens or residents of this State, having claims or demands-against such corporations arising out of any transactions in> this State with such agents, to sue for and maintain an action, in respect to such transactions in any court of this State having competent jurisdiction, and further authorizing service of process on such agents in such an action to be taken and accepted as valid service upon such corporation.
The 4th section of said act still further enacts that such, foreign corporations shall not enforce any contracts made by their agents, or persons assuming to act as their agents, in any o^ the courts of this State, before compliance by such agents, or persons assuming to act as such, with the provisions of the first and second sections, supra. 1 R. S. 1876,, p. 373.
The first paragraph of the answer, therefore, failed to state facts which would have prohibited the Railway Passengers Assurance Company from maintaining an action on the notes and mortgage, if it had continued to be the owner and holder of them, and was, consequently, bad as an answer in abatement as against the appellee. Walter A. Wood, etc., Co. v. Caldwell, 54 Ind. 270 (23 Am. R. 641); Daly v. National Life Ins. Co., 64 Ind. 1.
The fifth paragraph of the answer averred that the Railway Passengers Assurance Company was a foreign insurance company, and had, at the time the notes and mortgage were executed, failed to comply with the act regulating foreign insurance companies doing business in this State, approved December 21st, 1865. 1 R. S. 1876, p. 594.
Whether, if the facts pleaded had shown that the Railway Passengers Assurance Company, at the time it assigned the notes and mortgage to the appellee, was, by reason of its noncompliance with the act of June, 1852, unable to maintain a suit upon the notes and mortgage, in the courts of this State, such facts would have constituted a good answer as against the appellee, in abatement of this action, is a question we have not considered, and concerning which nothing must be understood as having been decided.
The judgment is affirmed, with costs.
Petition for a rehearing overruled.