Wright v. Rogers

26 Ind. 218 | Ind. | 1866

Gregory, C. J.

Appeal from an order of the court below overruling a motion to set aside an execution issued by the clerk, on a judgment rendered September 9th, 1859, in favor of the bank, against the appellant and one Partridge. The judgment Avas affirmed in this court, on. appeal, at the November term, 1864. 23 Ind. 124.

The execution was issued March 24th, 1865. The grounds of the motion are, that the bank was organized under the act of March 28,1852, authorizing and regulating the business of general banking, and that it had not complied with the requirements of section 48 of the act of March 3, 1855, 1 G. & H., p. 124, et seq.; that the bank did not redeem its circulation in coin, and that Rogers, the president of the bank, in whose name the judgment was obtained, died about the 1st of March, 1860. It was shown on the hearing that the claim on which the judgment was rendered was assigned to Walker in payment of a debt due him; that the assignment was made before the 1st of March, 1857; that the suit was, in fact, prosecuted for Walker's benefit, and the execution was issued for his use, and on his behalf, as assignee. The death of Rogers did not abate the action. 1 R. S. 1852, § 23, p. 157.

J. D. McDonald, A. D. Roache and D. Sheeks, for appellant. RJ. Walker, for appellees.

It is not shown that the auditor of state had instituted any proceedings against the bank under the 48th section of the act of March 3, 1855. "We think, in the absence of any such proceeding, that the bank had until March 1st, 1857, to wind up its business, including the power to assign its dioses in action to its creditors in payment of a debt. Cunningham v. Clark, 24 Ind. 7.

It is contended by the counsel for the appellee that an appeal cannot be , taken to this court from an order overruling the motion to set aside the execution; that it is not a “ final judgment,” within the meaning of the statute. We think the appeal will lie.

The judgment is affirmed, with costs.