89 Ind. 230 | Ind. | 1883
The complaint as it originally stood was upon a promissory note and mortgage; but before trial so much of the complaint as sought an enforcement of the mortgage was withdrawn.
The name First National Bank of Crawfordsville imports a corporation, and it was not necessary for the pleader to allege that the appellee was incorporated. Where the name used “argues a corporation,” there is no necessity for averring a corporate organization. Mackenzie v. Board, etc., 72 Ind. 189; Indianapolis Sun Co. v. Horrell, 53 Ind. 527.
The note was endorsed by the payee to the immediate endorsee of appellee in the name of the “trustees of the Indiana Asbury University,” and this, it is said, vests title inthetrus
The endorsement to appellee is signed, “ Trustees of Indiana Asbury University, by John W. Ray, treas.,” and we can not, in the face of the allegations of the complaint, say that he was not authorized to execute the endorsement.
The appellee was rightfully permitted to dismiss so much of the complaint as sought a decree of foreclosure. A plaintiff may at any time before trial withdraw part of his cause of action in cases where the cause is severable.
The trial court has a large discretion in the matter of permitting or refusing amendments, and we can not say that this discretion was abused in refusing to permit the appellant -Sayers to file an answer setting up his discharge in bankruptcy. The offer was not made until after the issues had been closed .and the case called for trial. Courts have a right to require diligence in the formation of issues, and carelessness in filing answers where defences are fully known is not to be encouraged. Such a defence as that which appellant sought to interpose could not have been unknown, nor could the necessity of specially pleading it have been doubtful.
One who executes a note secured by mortgage is personally liable on the note, and in the same action personal judgment may be rendered and a decree foreclosing the mortgage entered, so that the personal liability of appellant Sayers was none the less while the part of the complaint seeking a foreclosure was standing, nor was it any greater after that part was withdrawn. The materiality of such a defence was not affected by the withdrawal of the part of the complaint mentioned.
The endorsement of the note read in evidence thus gives the name of appellee: “ 1st Nat. Bank of Crawfordsville, Ind.,” -and it is claimed that there is a fatal variance. We are by no means satisfied that the abbreviations are not such as we
Judgment affirmed.