47 Ind. App. 359 | Ind. Ct. App. | 1911
— This is a snit brought by appellee against appellant and Lewis L. Perdiue, to collect a promissory note and to foreclose a chattel mortgage given to secure said note. Suit was dismissed as to Perdiue, and upon trial by the court there was judgment for appellee against appellant in the sum of $314.53, and a decree for the sale of the chattels mortgaged, in case of default of payment of the judgment.
The complaint was in two paragraphs, to each of which a demurrer was filed and overruled. The defendant filed an answer in seven paragraphs, including the general denial and a paragraph of set-off.
The first paragraph of complaint contains all the necessary and usual allegations of a complaint upon a note and chattel mortgage given to secure it where the suit is by the payee against the maker of the note and mortgage, and copies of the note and mortgage are set out with this paragraph as exhibits, both of which are drawn in favor of appellee as the payee of the debt. The sufficiency of this paragraph is not questioned by appellant under his-points and authorities.
The second paragraph contains all of the essential allegations of the first, with reference to the execution of the note
The third assignment of error calls in question the ruling of the court upon the demurrer to this second paragraph of complaint. The demurrer contains four grounds, but inasmuch as the first and fourth grounds only are considered by appellant in his brief, the second and third grounds will be disregarded. The first is “defect of parties plaintiff, in that Harriet Harriott, the real party in interest is not joined.” The fourth is “that said second paragraph * * * does not state facts sufficient,” etc.
Section 252 Burns 1908, §252 R. S. 1881, provides as follows: “An executor, administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another. ’ ’
Upon this question the Supreme Court, in the ease of Mitchell v. St. Mary (1897), 148 Ind. 111, at page 115, uses the following language: ‘ ‘ There must be something in the nature of the contract, appearing upon its face or from allegations in the pleadings, disclosing that a trust relation exists and is sought to be enforced for the benefit of the cestui que trust.” (Our italics.) In the case at bar the allegations of the pleading clearly disclose this relation.
In the case of Rowe v. Rand (1887), 111 Ind. 206, 210, the court said: “An agent may sue in his own name: (1) When the contract is in writing, and is expressly made with him, although he may have been known to act as agent. (2) When the agent is the only known or ostensible principal, and is, therefore, in contemplation of law, the real contracting party.”
Upon the question of who is a trustee of an express trust, the Supreme Court, in the case of Heavenridge v. Mondy (1871), 34 Ind. 28, 31, said: “The meaning of the words ‘a trustee of an express trust,’ as used in section four above quoted, was not left to the interpretation and construction of the courts, but their signification and construction were so plainly and clearly defined by the legislature as to leave no room for doubt or construction. Any person is ‘ a trustee of an express trust ’ with whom, or in whose name, a contract
In the case of Brooks v. Doxey (1880), 72 Ind. 327, 330, the court said: “It'is abundantly clear that where a factor sells goods in his own name, and without notice to the purchaser that he is not the principal, the latter may sue the purchaser for the price of the goods, though the agent might sue therefor in the absence of any claim by the principal. Thus, in Wharton, Agency §762, it is said: ‘Principal may sue vendee in his own name. This necessarily follows from what has been stated. * * * This right exists though the factor be himself entitled to sue on the contract; or though the vendee supposed the factor to be the real vendor, the true principal being unknown.’ ”
In 1 Story, Contracts (5th ed.) §263, the author says: “The cases in which an agent can sue third persons in behalf of his principal, may be divided into several classes, in all of which the rights of the two parties are correlative against each other. (1) Where an express contract in writing is made with the agent, personally, the principal not being named; * * * or where a promissory note is given to the agent personally in his own name, though it be for the benefit of the principal.” To the same effect as the cases before cited are the following eases and authorities: Story, Agency (9th ed.) §396; Sharp v. Jones (1862), 18 Ind. 314, 315, 81 Am. Dec. 359; Rawlings v. Fuller (1869), 31 Ind. 255; Fowler v. Rice (1869), 31 Ind. 258; Fuller v. Curtis
The record further discloses that on September 10, 1907, being the eighth judicial day of the September term of said court, “the following proceedings were had before the Honorable Joseph G. Leffler, sole judge of said court, namely.” It was suggested that the Honorable John M. Morris, judge of the Henry Circuit Court, who was special judge in this cause, is deceased, and the court ordered that the Honorable Ed Jackson, judge of said Henry Circuit Court, be appointed special judge to hear, try and determine this cause. On September 18, 1907, being the fifteenth judicial day of said September term of said court, defendant asked and was granted leave to amend his motion for a new trial, to which plaintiff at the time excepted, and, on October 5, 1907,
In the case of Levey v. Bigelow (1893), 6 Ind. App. 677, 681, the court said: ‘ ‘ It is true that a motion for a new trial must be presented to the court. Filing it with the clerk alone is not sufficient.”
It is said in the case of William Deering & Co. v. Armstrong (1898), 18 Ind. App. 687, 690: “It has always been held in this State, that the presentation to the clerk of any instrument required to be filed, and his indorsement thereon of his file mark, does not constitute a filing within the meaning of the law where papers or other instruments are required to be filed in open court. Such fact must be called to the attention of the court, and the court must make an entry
In Emison v. Shepard (1889), 121 Ind. 184, 186, speaking with reference to the statute which provides for the filing of a motion for new trial, the court said: “The statute declares it shall he by motion upon written cause filed at the time of making the motion, clearly contemplating that the motion shall be made or presented to the court, and, also, that the cause or reason for the motion shall be reduced to writing and filed at the same time of making the motion, the motion to be entered by the court and the written reasons filed by the clerk.”
The case of William Deering & Co. v. Armstrong, supra, is especially applicable to the facts presented by the record in this case, and is controlling herein. Under the law, as declared in this ease, the motion for a new trial in the ease at bar was not presented to the court below, and therefore none of the questions therein presented will be considered by this court.
One good paragraph of complaint, where the court has jurisdiction of the subject-matter and has acquired jurisdiction of the parties, prevents reversible error growing out of the refusal of the court to sustain the motion in arrest of judgment. Gilmore v. Ward (1899), 22 Ind. App. 106; Lange v. Dammier (1889), 119 Ind. 567.
The record discloses that upon the application and affidavit of Lewis L. Perdiue, appellant’s codefendant to the original complaint, a change of venue was taken from the regular judge, on account of his alleged bias and prejudice* without objection or exception by appellee. It was not only the privilege, but it was the duty of the regular judge, after the change of venue had been taken from him and the special judge appointed had died, to refuse to sit in the hearing of the cause which had been so venued away from him. Upon the default of the special judge, whom he had appointed finally to determine and dispose of the case, the cause dropped back to the regular judge, only for the appointment of another judge, and not for the trial of the cause or taking any other steps therein. Lillie v. Trentman (1891),
The appointment of Jackson as special judge, after the. death of Morris, was regular and conferred jurisdiction on him. Harris v. United States, etc., Co. (1896), 146 Ind. 265; Hutts v. Hutts (1875), 51 Ind. 581, 584; Greenup v. Crooks (1875), 50 Ind. 410, 415, 416; Glenn v. State, ex rel. (1874), 46 Ind. 368, 372, 373; Stinson v. State, ex rel. (1869), 32 Ind. 124; Singleton v. Pidgeon (1863), 21 Ind. 118; Cincinnati, etc., R. Co. v. Rowe (1861), 17 Ind. 568.
The decisions just cited hold that where, for any cause, the special judge fails to appear before the cause which he is appointed to try is finally disposed of, the cause falls back upon the docket before the regular judge; and it is held in the case of Harris v. United States, etc., Co., supra, that where a judge is disqualified he is in all respects disqualified from acting, except to appoint a special judge. The court in that case said, at page 268: “The petition for such receiver, although in aid of the decree originally rendered, was a new invocation of the equity powers of the court, and was an appeal to the court, rather than to its judge or to the special judge who presided in the original suit. The right to put that jurisdiction into exercise did not depend upon the will or pleasure of the special judge, but rested with the court whose regular judge was disqualified from acting, all but to appoint a special judge. ’ ’
Judgment affirmed, with an order to tax costs of appeal, including the cost connected with the certiorari proceedings and the motion for nunc pro tunc entry, against appellant.