Pattison v. Norris

29 Ind. 165 | Ind. | 1867

Ray, J.

The appellee obtained judgment by default against the appellant and one Cullum, as surviving partners of the firm of Shoup, Cullum § Co. The. suit was- upon a due bill signed in the firm name.

At the same term of court at which the default and judgment had been entered, Pattison asked leave to file a motion to set aside the default as to him, and filed affidavits in support of the motion. The court sustained the motion of Pattison, and ordered the default and judgment to be set aside and vacated, “and that said defendant be permitted to appear and plead herein.”

Pattison thereupon filed an answer, under oath, denying the execution of the due-bill, or that any such firm as Shoup, Cullum Co. existed at the date said due-bill was signed. Reply in denial, and a paragraph averring subsequent ratification and confirmation of the. act of his partner in giving the due bill. A demurrer was overruled to ■the second paragraph. We see no objection to this action of the court.

On the trial, there was evidence from which an original authority to execute the due bill in the firm name might be very fairly inferred. Thus, the appellee and his son testify that Pattison made no objection to the execution when the note was exhibited to him, but offered to purchase it. It is insisted that such evidence is not admissible, because- it is stated he was then engaged in efforts to compromise all his debts. The compromise was not of disputed debts, but of admitted indebtedness, and on the ground that he was unable to pay in full. If the testimony of Pattison and Outturn was believed by the court trying the cause, the finding could not be sustained, as any authority in Outturn to execute the paper is denied by both. But their evidence seems to have been disregarded, and we cannot review the action of the court, as it had ail the witnesses present before it.

It is insisted that the final judgment is void, because taken only against Pattison, whereas the liability was joint. "We do Hot regard the judgment by default against Cullum as vacated by the order of the court. Pattison only asked to have the judgment set aside as to him, and he cannot now complain of the sustaining of his own motion. It would have been better, perhaps, on Pattison’s application, to have held the judgment subject to the result of his defense, but there is no error, as it stands, authorizing a reversal.

The judgment is affirmed, with costs and two per cent, damages.