41 Ind. App. 411 | Ind. Ct. App. | 1908
In the court below appellee sued appellants to foreclose an indemnifying mortgage executed to him by Artemus O. Souers and John S. Hoover, covering a stock of furniture in the town of Van Burén, Indiana, and owned by them as partners, and which they were engaged in selling at retail. The second paragraph of the complaint was answered by Hamrick, as assignee of Souers, by a general denial and by an affirmative paragraph averring that the mortgagors, Souers and Hoover, were, by the terms of said mortgage, to keep possession of the mortgaged property and sell any part thereof at retail without any agreement, in the mortgage or otherwise, to account to the mortgagee or to any person in his behalf for the proceeds of sales so made, and that sales were made and the proceeds thereof appropriated by the mortgagors to their own use. A reply in denial formed the issues submitted to the court for trial. Souers and Hoover made default. At the request of appellant
Upon the facts found the court stated as conclusions of law: (1) “Plaintiff is entitled to judgment against Souers and John S. Hoover for $2,098.66 and costs; (2) plaintiff is entitled to possession of the mortgaged property, and to have it sold by the sheriff and the proceeds applied to the judgment.” Hamrick reserved exceptions to the conclusions of law, and over his motion for a new trial jrrdgment was rendered in favor of appellee. Hamrick, as assignee, appeals
Judgment affirmed.