75 Ind. App. 595 | Ind. Ct. App. | 1921
The only substantial question presented in this appeal is one involving the principle of res adjudicata, which is presented by error assigned on the court’s action in overruling appellant’s demurrer to appellee’s reply, and in overruling appellant’s motion for a new trial.
While the record and the briefs are somewhat voluminous, the facts upon which the question arises, concisely stated, are as follows:
Appellee, executrix, hereinafter mentioned as appellee, sued appellant on the last eleven of a series of thirty notes, each in the sum of $50, dated July 31, 1918, payable one each successive month from date with six per cent, interest from date, signed and executed by appellant, and payable to appellee O’Brien, by whom they were endorsed before maturity to appellee’s decedent. One Nathanson and one Taumler, for whose benefit said notes were made, or their transferees, paid the first ten of said series of notes, after which they became insolvent, and failed and refused to make further payments. Appellant thereafter, and before the former suit, paid the next seven of said notes, and during the progress of the former trial in the former suit paid another. The record does not account for one note, but this fact is not material.
The former suit was upon a $1,500 note given by said Nathanson and Taumler to appellant to indemnify him against loss because of his liability upon said series of notes which said Nathanson and Taumler expected to pay, but which they failed to pay as aforesaid. Said $1,500 note was secured by mortgage upon said Nathan-
Appellant’s counsel in an able and extensive brief, presents numerous propositions which are sustained by authorities. We do not question the propositions or the authorities cited, but hold that they are not applicable to the facts in this case. The court did not err in its ruling. The judgment is affirmed.