Shetler v. Thomas

16 Ind. 223 | Ind. | 1861

Davison, J.

The appellee, who was the plaintiff, brought an action against Shetler, upon a promissory note for the payment of $200. The note bears date, October 8,1855, and was payable to Bennet Carr and James Carpenter, who assigned it to one David Denman, who on June 26, 1857, assigned the same to the plaintiff. Defendant’s answer contains three paragraphs. The first and second led to issues of fact. To the third there was a demurrer sustained. The Court tried the cause, and found for the plaintiff; and, having refused a new trial, rendered judgment, &c.

The action of the Court, upon the demurrer to the third paragraph of the answer raises the only question in the case. That paragraph alleges, substantially, these facts: “ On June 24, 1857, Francis Haskins et al. instituted a suit in the Kosciusko Common Pleas against Denman, the plaintiff’s assignor, upon a note for $800; and on the same day procured an attachment against his goods and chattels, and also filed their affidavit, alleging, inter alia, that. Shetler, the present defendant, was indebted to Denman, the then defendant, on the same promissory note now in suit; and, thereupon, they procured a summons against Shetler, as garnishee, to appear at the then next term of the Court, and answer as to such indebtedness. It is averred that Shetler was summoned as garnishee, on July 2,1857, and that, within five days thereafter he furnished the officer who served the summons with a certificate, to the effect that he had executed the note on which this suit is brought; that the same had been assigned to Denman, and was unpaid, and that he had no knowledge whatever of Denman having in any way transferred or assigned it; that at the next term of said Court, viz., on July 30, 1857, the plaintiffs in the attachment suit recovered a judgment against Denman, the then defendant, and also a judgment against Shetler, the present defendant, as such garnishee, on the note now in suit, for the full amount of its 3 3 principal and interest. And he in fact says, that at all the times above stated, he had no notice or knowledge of assignment by Denman to the plaintiff.

James PL. Carpenter, II. O. Newcomb and John Tarkington, for the appellant.

We perceive no ground upon which the decision of the Common Pleas upon the demurrer to the third defense can be sustained. The demurrer admits the facts pleaded. And they obviously constitute a sufficient bar to the action. The code says: “ Whatever defense or set-off the maker of any promissory note had, before notice of assignment, against an assignor, or against the original payee, he shall have also against their assignees.” 1 R. S., § 6, p. 378. In the Revision of 1843, there is a provision similar to the one just cited, and under it this Court has decided, that “ in a suit by the assignee of a note against the maker, a judgment recovered against the maker of the note as garnishee, in an attachment against the payee, may be pleaded in bar of the suit, if the judgment was rendered before the maker had notice of the assignment.” Covert v. Nelson, 8 Blackf. 265. This decision seems to be decisive of the case before us.

Per Curiam.

The judgment is reversed, with costs. Cause remanded, &c.