20 Ind. App. 253 | Ind. Ct. App. | 1898
The appellant, Thomas R. Paxton, receiver of the Vincennes National Bank, brought his action against the appellee in the Knox Circuit Court, upon a promissory note made by the appellee to said bank, dated May 23, 1885, upon which as shown by the complaint fifteen hundred dollars had been paid. Before the issues were fully formed the venue was
It was further alleged in the second paragraph of answer, that said contract had been in full force and effect since the date of its execution; that the appellee in all respects kept and performed all the conditions of said contract on its part; that said Tyler, the president of said bank, collected and took charge, for the pay
The appellee also filed a pleading denominated therein a cross-complaint, which counsel for appellant in argument say is in all respects the same as the second paragraph of answer, while counsel for appellee say that these pleadings are the same except that they are differently named. A demurrer to the cross-complaint was overruled. The objection urged by counsel to this pleading, thus unnecessarily duplicated, is that if it shows a cause of action it is one not against the bank or its receiver, but against Tyler and Foulks. The facts are not stated with desirable clearness.
It is alleged that a mortgage was given by the appellee to Tyler, the president of the bank, and Foulks, its cashier, for the purpose of securing the note in suit and other indebtedness of the appellee to the bank. It is alleged that the agreement set out in the pleading was entered into for the purpose of repaying the indebtedness of the appellee to the bank. The agreement by its terms provided that the mortgaged property should be disposed of by Tyler and Foulks, that the proceeds should be applied in payment of operating expenses and the expenses of disposing of the property, and that the balance of the proceeds should be applied in payment of a mortgage held by Tyler and Foulks to indemnify them as indorsers for the appellee and in payment of a certain other mortgage executed by the appellee to the bank, so far as said indebtedness might remain after collecting insurance money due to the company. The agreement provided
It appears from the pleading that the bank retained and used a. certain sum, being the surplus of money received by its president, acting as such, which he had realized from sales of property of the appellee turned over to the president and cashier for the purpose of paying the indebtedness of appellee. It may be gathered from the pleading that the president of the bank placed the entire proceeds of the property in the bank where it was used as the money of the bank, and did not return any part of it to the appellee. If the president and cashier were personally liable to the appellee, which we need not decide, still it appears that the bank by its own officers, acting as such, having appropriated and retained a larger amount than was necessary to discharge the appellee’s indebtedness, was liable to him for the surplus so retained. The appellee’s demand set forth in the second paragraph of answer and in the cross-complaint wras within the definition of a set-off in the statute which pro
The court sustained a demurrer to a plea in abatement directed to the cross-complaint, in which the appellant alleged the death of said Wilson M. Tyler, and the appointment of an administrator of his estate, and showed that before the commencement of this action the appellee filed a claim against said estate for the same cause of action as that set forth in the appellee’s cross-complaint, which claim was still pending in the Knox Circuit Court. It was also alleged in substance, in this plea, that on, etc., the Vincennes National Bank was declared insolvent by the comptroller of the currency; that the appellant was by said comptroller duly appointed receiver, etc.; and that under the instructions of the comptroller the appellant gave notice by publication, of his appointment, notifying and requiring all persons having claims against said bank to make a written statement thereof, verified by oath, and to file the same with said receiver within ninety days from the publication of the notice; and that no claim had been so filed by or for the appellee; that prior to the filing of the cross-complaint the appellant had no notice that the appellee claimed that said bank was indebted to it; that for more than six months the appellant had kept an office at Vincennes, and had been present there attending to the business of said receivership, and that a person named who claimed to have an interest in said company, and had been acting in its behalf in the filing of said claim, had knowledge of the appointment of the receiver and of
The pendency of a prior action is not ground for abatement, if not between the same parties as those involved in the case wherein it is pleaded, or their privies, as well as for the same cause of action as that set up therein. Dawson v Vaughan, 42 Ind. 395; Bryan v. Scholl, 109 Ind. 367; American White Bronze Co. v. Clark, 123 Ind. 230; Needham v. Wright, 140 Ind. 190. If the claim alleged to be pending against the decedent’s estate can be said to involve the same cause of action as that presented by the second paragraph of answer and the cross-complaint, the prior proceeding was not between the parties here contending.
Concerning the other branch of the plea in abatement, counsel for appellant are of the opinion that the claim against the bank should have been filed with the receiver pursuant to the notice given by him; but they do not state any reason why the appellee, having failed so to present the claim, may not set it up in the action brought by the receiver for the purpose of collecting supposed assets of the bank. The receiver chose a tribunal in which to litigate a claim of the bank against the company, which could not be properly adjusted without the determination along with it of the cross-claim of the company against the bank, which if allowed, would extinguish the appellant’s claim and prevent a recovery thereon, while at the same time the question as to the additional amount of indebtedness of the bank to the appellee could be adjudicated in the receiver’s chosen tribunal. We think the court did not err in sustaining the demurrer to this plea in abatement to the cross-complaint, or in sustaining the demurrer to a like plea to the second paragraph of answer.
The court also sustained a demurrer to the second,
The cause was tried by jury, and a special verdict was rendered. The appellant’s motion for a venire de novo was overruled. The verdict was in the form of interrogatories and answers thereto.
If conclusions of law or evidentiary facts be set forth in a special verdict, it will be a sufficient verdict, if, when such improper matter is eliminated, it contains enough facts to support a judgment within the issues. Louisville, etc., R. W. Co. v. Berkey, 136 Ind. 181; Terre Haute, etc., R. R. Co. v. Brunker, 128
Upon a careful examination, which the involved character of the verdict has rendered necessary, we think that, considering it as a whole, in connection with the issues made by the pleadings, the verdict was not so defective that a judgment could not be rendered upon it. The judgment rendered for the appellee was for $2,056.00, a smaller amount than the balance to which the appellee appears from the verdict to be entitled. This does not go to. the question of the sufficiency of the verdict upon a motion for a venire de novo.
The appellant’s motion for a new trial was overruled. In argument upon the causes assigned in this motion counsel have made but few references to the