155 Ind. 519 | Ind. | 1900
— The relief sought to be obtained by appellees under the facts 'alleged in their complaint was the cancelation of a certain promissory note and an application of the amount of money which it represented to the payment of a certain judgment. A demurrer to the complaint for insufficiency of facts was overruled. The assignment of errors is based (1) upon the ruling of the lower court on a demurrer to the complaint; (2) sustaining the joint demurrer of appellees to the second paragraph of answer; (3) sustaining the separate demurrers of appellees to appellant’s cross-compjaint; (4) denying appellant’s motion to set aside the judgment, and in overruling his motion for a new trial. An epitome of the facts set out in the complaint is as follows: On May 12, 1891, appellant, Troxel/and appellee Miller were owners of a certain tile and brick mill including all fixtures and appliances thereto belonging. On that date said Troxel and Miller executed their promissory note for $400 to one Freeze, and, to secure this note, they executed to him a chattel mortgage upon the above tile and brick mill, which mortgage was duly recorded within ten days from the date of its execution in the recorder’s office in Clinton county, Indiana, in which county the mortgaged property was situate, and wherein the mortgagors resided. Subsequently Miller sold and transferred all of his interest in said property to Troxel, and, as a part of the consideration for such sale and transfer, Troxel assumed and agreed to pay the note secured by the mortgage. Thereafter, on March 27, 1893, Troxel sold and transferred said property with the mortgage lien thereon to William C. Caldwell and James W. Thomas, the latter being an appellee in this case. As a part of the consideration of this latter sale, said
Appellant answered the complaint in two paragraphs, the first being the general denial. By the second paragraph he admitted that he sold to Caldwell and Thomas a certain tile factory situate on certain described real estate in Clinton county, Indiana, for the price of $1,100, $400 of which was to be due and payable when the chattel mortgage, executed by him and Miller to Ereeze, was released. He further admitted the foreclosure of said mortgage, as alleged in the complaint, but averred that the property encumbered by the mortgage did not include the tile and brick mill which he sold to Caldwell and Thomas; that no part of the property sold by him to these parties was included in or encumbered by the mortgage to Ereeze, except a certain boiler and engine, each of which was old and much worn, and, at the time of the foreclosure of the chattel mortgage in question, were in the aggregate only of the value of $25 and no more. As to this amount the answer alleged that the defendant was, at the time of the foreclosure of the said chattel mortgage and ever since has been, ready and willing to give plaintiff, Thomas, a credit upon the $400 note, to the amount of the
The record discloses that appellant filed what is denominated an amended cross-complaint whereby he demanded affirmative relief against appellees James W. Thomas, Oscar Miller, William O. Caldwell, and Levi Thomas, all of whom were made defendants to the cross-complaint. Each appeared and demurred separately to the cross-complaint. After the filing of these several demurrers, the following entry appears in the record: “Come now the parties by their attorneys, and the court being advised in the premises sustains the demurrer to the amended cross-complaint, to which the defendant, Daniel J. Troxel, excepts.” Appellant in some four separate assignments predicates error upon the ruling of the court on the separate demurrer of each of the defendants to the cross-complaint. It is evi
It is next and lastly insisted that the court erred in denying appellant’s motion to set aside the judgment of the lower court upon the ground that the record does not show that there was a submission and trial of the cause. The following entry, however, appears in the record: “Come the parties by their attorneys, and, on plaintiff’s motion, the court heard further testimony in this cause, to which the defendant excepts. The court having heard the further testimony and being advised in the premises finds for the plaintiffs.” This we think is sufficient to disclose that there was a submission of the cause and a trial and finding by the court.
There is no available error, and the judgment is therefore affirmed.