Bingham v. Newton Bank

• Decision Date: 02 June 1916
• Docket Number: No. 9454.,9454.
• Citation: 63 Ind.App. 606,114 N.E. 97
• Parties: BINGHAM v. NEWTON BANK et al.
• Court: Indiana Appellate Court

63 Ind.App. 606

114 N.E. 97

BINGHAM

v.NEWTON BANK et al.^*

No. 9454.

Appellate Court of Indiana, Division No. 1.

June 2, 1916.

Appeal from Circuit Court, Fountain County; Isaac E. Schoonover, Judge.

Replevin suit by James Bingham, as receiver of the Columbia Casualty Company, against the Newton Bank, in which by intervening petitions Rudolph C. Keller and one Richards were admitted as parties to the suit, and in which Keller filed a cross-complaint. Judgment for Keller, finding that Richards had no right, title or interest, that the bank was entitled to one certificate, and that Keller should have judgment against the bank for the amount of one certificate, and the plaintiff appeals. Appeal dismissed.

James Bingham and Remster A. Bingham, both of Indianapolis, and Charles M. McCabe, of Crawfordsville, for appellant. C. W. Dice, of Covington, Adams, Follansbee, Hawley & Shorey, of Chicago, Ill., John B. Martin, of Covington, and Clyde E. Shorey and John E. Gavin, both of Chicago, Ill., for appellees.

FELT, J.

Appellee Rudolph C. Keller has moved to dismiss this appeal. The record shows that the judgment overruling appellant's motion for a new trial was rendered September, 7, 1915. The appeal was submitted in this court on December 6, 1915. Appellant by procuring an extension of time had until April 10, 1916, in which to file his briefs. The briefs were filed on that day, which was 36 days beyond the time allowed for taking an appeal. On April 14th appellee the Newton Bank filed a confession of error, and on May 1, 1916, appellee Keller filed his motion to dismiss the appeal. On May 4, 1916, appellant by written motion, asked leave to amend his original briefs, apparently to obviate the grounds of the motion to dismiss. The motion to dismiss alleges that: (1) No question is presented by the record and briefs of appellant; and (2) that appellant has recognized the validity of the judgment from which the appeal is prosecuted.

The suit was brought by appellant, as receiver of the Columbia Casualty Company, to replevin two certificates of bank deposits from appellee the Newton Bank, each calling for $245, and numbered, respectively, 840 and 841. By intervening petitions appellee Keller and one W. E. Richards were admitted as parties to the suit, and each set up his claim to ownership of one of the certificates. The bank made no claim of ownership, but asserted a right of set-off against the Columbia Casualty Company.

Various issues were joined on the complaint, and on a cross-complaint by appellee Keller. On trial of the issues the court found that appellee Keller was the owner and entitled to possession of certificate 841; that Richards had no right, title, or interest in or to either of the certificates; that appellee the Newton Bank was entitled to certificate 840; that appellee Keller should have return of his certificate and judgment against the bank for the amount thereof and accrued interest. The judgment was in accord with the findings.

The errors assigned are: (1) The overruling of appellant's demurrer to the second paragraph of the reply of appellee Keller; and (2) the overruling of appellant's motion for a new trial. Other attempted assignments are shown, but they consist simply of statements in different form of the second alleged error and of grounds for a new trial which cannot be assigned as independent error.

Appellee in his motion to dismiss alleges: (1) That no questions are presented because of failure to comply with clause 5 of rule 22 of this court (55 N. E. vi), in this, that appellant has not set out in his briefs the demurrer or the memorandum accompanying the same on which he seeks to predicate error; also, that in his points and authorities, under the second assignment of error, appellant has only stated general abstract propositions of law, and has in no way indicated their relation or application to any question arising on the motion for a new trial. (2) That the evidence has not been brought upon appeal, and no question relating to or depending upon the evidence can be considered. (3) Appellant has settled the controversy between himself and appellee the Newton Bank by paying the judgment and thereby acknowledging its validity.

Appellant in his application to amend his briefs says the demurrer, memoranda, ruling of the court, and exceptions thereto were inadvertently omitted in the preparation of his briefs; that he was not aware of their omission until...