70 Ind. 152 | Ind. | 1880
— In this action, the appellants, partners under the firm name of C. L. Luce & Co., were the plaintiff's, and the appellees were the defendants, in the circuit court. In their complaint, the appellants alleged, in substance, that
This complaint was duly verified* and, a proper undertaking having been filed, a temporary restraining order was granted, as prayed for.
The appellees jointly answered the complaint, by a general denial thereof. The issues joined were tried by a jury; and a verdict was returned, for the appellants, as
The only error assigned by the appellants in this court is the decision of the circuit court in overruling their motion for a new trial. Without setting out the causes assigned for such new trial, we will consider and decide such questions as the appellants’ counsel have presented and discussed in their elaborate brief of this cause, and as fairly arise under the alleged error of the court in overruling the motion for a new trial, in the same order in which counsel have presented them. The first question discussed by the appellants’ counsel has reference only to the thirteen judgments described in the complaint, which were severally rendered by the justice of the peace on promissory notes, all dated September 8th, 1876, executed by said Harry S. Shoff and payable-to said A. S. Evans & Co. Of these thirteen judgments, counsel say interrogatively: “Now, were these judgments obtained for any valuable consideration whatever?” The evidence shows very clearly, we think, that the notes, upon and for which the thirteen judgments were rendered, were given by- Shoff to A. S. Evans & Co., not on account of any indebtedness of Shoff to A. S. Evans & Co.; but it appeared that these notes were given for the purpose of securing certain other persons, if possible, who were liable for said Shoff, as his accommodation endorsers. It was an admitted fact, that Shoff wms insolvent both at the time the thirteen notes were given, and at the time the thirteeu judgments thereon
Upon these facts, the appellants’ counsel insist, as we understand them, that the thirteen notes of Shoff, and the thirteen judgments rendered thereon against him, were absolutely void and ought to have been set aside and declared void by the judgment of the court. This position of counsel cannot be maintained, we think. There was no evidence, adduced upon the trial, which tended to show that the acts of Shoff in the premises were done with the intent to hinder, delay or defraud the appellants, or any of his creditors. Eraud is never presumed, but "must be proved, and it was a question of fact for the jury to determine, in this case, whether or not the acts of Shoff and A. S. Evans & Co., in regard to the thirteen notes and judgments complained of by the appellants, were done with a fraudulent intent and for a fraudulent purpose. Rhodes v. Green, 36 Ind. 7; Farmer v. Calvert, 44 Ind. 209; Morgan v. Olvey, 53 Ind. 6; Leasure v. Coburn, 57 Ind. 274. In this case, the jury determined the question of fraud adversely to the appellants, and we think that the verdict on this point was fairly sustained by sufficient evidence.
It is claimed that the court erred in refusing to give the jury the following instruction, at the appellants’ request:
“If the jury find from the evidence, that any of these notes were dated on the 8th day of September, 1876, and were due one day after date, when, in fact, they were executed on the 11th day of September, 1876, and that suit was commenced on said 11th day of September, 1876, then, as to such note or notes, suits were commenced before the maturity of said paper, and said judgments on said nóte or notes are void.”
The evidence show’s that the said thirteen notes, on
The appellants’ counsel also insist that each of the twenty judgments rendered by the justice of the peace, against said Shoff and in favor of A. S. Evans & Co., was absolutely void, for the want of jurisdiction in the justice to render such judgments. The record shows that A. S. Evans & Co. commenced twenty separate suits against said Shoff, before the same justice, on the same day; that in each of said suits a summons was issued and served on the defendant Shoff', and that all of said writs required him to appear and answer, before said justice, on the same day; and that twenty separate judg
The position of counsel, on this point is a singular one, and does not meet the approval of our judgments. "We.are of the opinion that A. S. Evans & Co. had the right under the law, if they saw proper to do so, to bring a separate suit, on the same day, before a justice of the peace, on each of the twenty notes held by them against the said ShofF; and each of the twenty notes thus sued upon being wit-hin his jurisdiction, the justice had the right, under the law, to render separate judgments in each of the separate suits, on the same day.
The court was not asked by either party to give its instructions to the jury in writing ; -but the record shows that the court orally instructed the jury. The fourth cause assigned for a new tidal, in the appellants’ motion therefor, reads as follows :
“4th. That the court erred.in the entire decision in the case of ‘ Lord and Others v. Fisher and Others’ a copy of which decision is filed herewith and made a part hereof; ” and then follows, not a copy of the decision, but a copy of the syllabus prefixed to the opinion of this court, in the case of Lord v. Fisher, 19 Ind. 7.
We have now considered and passed upon all the causes assigned for a new trial, and the questions thereby presented for our decision; and we are of the opinion that no error was committed by the court below in overruling the appellants’ motion for a new trial.
The judgment is affirmed, at the appellants’ costs.