Anderson v. Lipe

• Decision Date: 09 May 1888
• Citation: 114 Ind. 464,16 N.E. 833
• Parties: Anderson et al. v. Lipe.
• Court: Indiana Supreme Court

114 Ind. 464

16 N.E. 833

Anderson et al.

v.Lipe.

Supreme Court of Indiana.

May 9, 1888.

Appeal from circuit court, Knox county; N. F. Malott, Judge.

Action on a promissory note by James J. Anderson and another against Columbus I. Lipe. The plaintiffs appeal.

Cauthorne & Boyle, for appellants. Cullop, Shaw & Kessinger, for appellee.

Howk, J.

In this case the only error assigned here by appellants, the plaintiffs below, is the sustaining of defendant's motion in arrest of judgment, and the rendition of judgment in his favor. The suit originated before a justice of the peace of Knox county, before whom the defendant recovered a judgment, from which plaintiffs appealed to the court below. There the cause was tried by the court, and a finding was made for the plaintiffs, assessing their damages in the sum of $67.60. Defendant's motion for a new trial having been overruled, he then moved the court in writing to arrest judgment on its finding herein. This motion was sustained by the court, and over plaintiff's exceptions to such ruling the court adjudged that judgment on its finding aforesaid should be arrested. From such judgment of the court the plaintiffs now here prosecute this appeal, and assign as the only error of which they complain the ruling of the court below in arresting judgment on its finding in their favor, and against defendant herein, for their damages assessed as aforesaid. Manifestly the only question presented for our decision by the record of this cause, and plaintiffs' assignment of error thereon, is this. Are the facts stated in plaintiffs' complaint sufficient, after trial and finding thereon, to constitute a cause of action, and to sustain a judgment in their favor and against the defendant herein? Plaintiffs commenced this suit, as we have heretofore said, before a justice of the peace of Knox county. Their complaint, as filed before the justice, contained two paragraphs; but before the cause was tried by the court below they dismissed the second paragraph of their complaint, at their cost. This left the first paragraph as their only complaint, properly in the record, and it will be spoken of and considered as such complaint in this opinion. On the first day of August, 1885, plaintiffs, Anderson and Weissenberger, filed their complaint herein before such justice of the peace, wherein they allege that defendant, Lipe, was justly indebted to them in the sum of $100, for that, whereas, theretofore, to-wit, on the 25th day of June, 1885, such defendant executed and delivered to said plaintiffs, by the name and style of “Gas-Fitting Co.,” his promissory note, of which the following is a copy:

“$64.69. Vincennes, Ind., June 25, 1885.

Thirty days after date we, or either of us, promise to pay to Gas-Fitting Company, or order, sixty-four 69-100 dollars, negotiable and payable at the Vincennes National Bank, Vincennes, Ind., for value received, and the same to be included in any judgment on this note, without relief from valuation or appraisement laws.

+---------------------------------------+
                ¦[Signed]¦Vincennes Mfg. Co.            ¦
                +--------+------------------------------¦
                ¦        ¦By Columbus I. Lipe, Secr'y.  ¦
                +--------+------------------------------¦
                ¦        ¦George F. Montgomery, Pres't.”¦
                +---------------------------------------+
                

-That the said note was justly due, and, together with the interest accruing thereon, remained unpaid, to plaintiff's damage $100, for which sum they demanded judgment, etc.

It is not shown by the record of this cause that the sufficiency of plaintiffs' complaint was called in question by defendant before the justice or in the circuit court, by his motion to dismiss or his demurrer for the alleged want of facts therein. But after the cause had been fully heard and determined, and after the court had found for the plaintiffs, and assessed their damages as aforesaid, and after the court had overruled defendant's motion...