55 Ind. App. 331 | Ind. Ct. App. | 1913
This action was brought by appellee against the estate of Silas M. Busby, deceased, upon two promissory notes alleged to have been executed by Leonidas P. Busby, Bloomer W. James and Silas M. Busby, under the names and styles of L. P. Busby, B. W. James and S. M.Busby, and filed with the clerk of the Madison Circuit Court as a claim against said estate. Appellee’s amended claim not being allowed or disallowed by the administratrix, Lillie Patterson, within sixty days, the same was entered upon the court’s claim docket for trial. Appellant’s demurrer thereto was overruled. The issues formed were tried by court and jury, resulting in a verdict and judgment for appellee.
With its general verdict, the jury returned answers to eleven interrogatories. The overruling of appellant’s motion for judgment in its favor upon the interrogatories and answers notwithstanding the general verdict, and the overruling of its motion for a new trial are the errors relied upon for a reversal of this cause.
The first note in suit reads as follows:
“Chrisman, Illinois, Oct. 15, 1908.
$1,000.00. Six months after date, we, or either of us, promise to pay to the order of The State Bank of Chrisman One Thousand and No/100 Dollars, payable at the office of said bank, in Chrisman, Illinois, for value received, with interest at the rate of seven per cent per annum after date until paid, and if not paid at maturity and put in an attorney’s hands for collection, we agree to pay ten per cent attorney’s fee on the amount due. The drawers' and endorsers severally waive presentment, protest, and notice of protest of nonpayment of this note. L. P. Busby. B. W. James. S. M. Busby.
Due April 15, 1909.”
The second note is an exact copy of the first except that ' it is for $3,000, dated November 18, 1908, and drre May 18, 1909.
The facts as found by the jury in answer to interrogatories,
“We the undersigned do agree that we will stand together and support the firm of B. W. James and L. F. Busby and we grant the right of our names to be used jointly and to be signed by either one of the persons signed below.
Bated Sep. 25, 1906. B. W. James. L. P. Busby.
S. M. Busby.”
That Silas M. Busby did not sign the notes iu suit, but by. written agreement authorized B. W. James and L. P. Busby to do so, and his name was signed thereto by L. P. Busby; that B. W. James and L. P. Busby were principals on said notes and S. M. Busby was surety; that claimant had knowledge that the name of Silas M. Busby was signed to the notes in suit as surety by his son, Leonidas P. Busby; that both B. W. James and L. P. Busby are nonresidents of the State of Indiana.
No error was committed in the admission of the evidence of C. W. Newkirk, or the refusal to permit Lillie Patterson to testify as to her knowledge of the claim.
It has been repeatedly held by both this court and the Supreme Court that the record must disclose an order book entry showing the filing of instructions. After a diligent search of the record in this ease we are unable to find any order book entry or order of court showing the filing of instructions in accordance with §691 Burns 1908, §650 R. S. 1881. Tell City Canning Co. v. Wilbur (1910), 46 Ind. App. 550, 93 N. E. 174; Close v. Pittsburgh, etc., R. Co. (1898), 150 Ind. 560, 50 N. E. 560; Russ v. Russ (1895), 142 Ind. 471, 474, 41 N. E. 941; Board, etc. v. Gibson (1902), 158 Ind. 471, 63 N. E. 982; Newsom v. Chicago, etc., R. Co., supra. So it appears that appellant has not come strictly within the provisions of any section of the statute in incorporating the instructions in the record.*
There being no error in this ease, the judgment is affirmed.