Bowman v. Citizens' National Bank

• Decision Date: 24 January 1900
• Docket Number: 2,972
• Citation: 56 N.E. 39,25 Ind.App. 38
• Parties: BOWMAN, ADMINISTRATOR, ET AL. v. THE CITIZENS' NATIONAL BANK ET AL
• Court: Indiana Appellate Court

56 N.E. 39

25 Ind.App. 38

BOWMAN, ADMINISTRATOR, ET AL. v. THE CITIZENS' NATIONAL BANK ET AL

No. 2,972

Court of Appeals of Indiana

January 24, 1900

Rehearing denied June 7, 1900.

From the Delaware Circuit Court.

Affirmed.

R. S Gregory, A. C. Silverburg, O. J. Lotz, F. Ellis and J. T Walterhouse, for appellants.

C. G. Renner, J. C. McNutt and E. M. White, for appellees.

OPINION

BLACK, J.

A claim was filed in the office of the clerk of the court below by the appellee The Citizens National Bank of Martinsville, Indiana, against the estate of George L. Lenon, deceased, upon a joint and several promissory note signed by the decedent and the appellant Richard Sedgwick and the appellee Charles A. Ramsey. The claim, upon the filing thereof, was docketed in the appearance docket. Afterward, the claim not having been allowed by the administrator, it was transferred and docketed in the issue docket as a case pending under the number 11,047. The title, or caption, of the statement of claim, as originally filed, was as follows: "State of Indiana, Delaware County, ss. Estate of George L. Lenon, deceased, in account with Citizens' National Bank of Martinsville, Indiana. Dr." In the statement, amongst other things, a credit was alleged by way of payment on the note by "B. C. Bowman, Adm. of estate of George L. Lenon," etc.

The claimant filed in the court below a verified petition for leave to amend its claim by making said Sedgwick and Ramsey defendants. In this petition, it was alleged, amongst other things, that the action was one to collect a joint and several promissory note executed by George L. Lenon, in his lifetime, Richard Sedgwick and Charles A. Ramsey; that said note was the basis of the action; that it was due and unpaid; and that after the death of said Lenon, one Benjamin C. Bowman had been duly appointed administrator with the will annexed of his estate. The filing of the claim against the estate was alleged, and it was stated that it was not allowed by said administrator for the reason that Sedgwick and Ramsey were jointly liable, whereupon the claim was transferred to the issue docket, etc.

Thereupon, the court ordered that the "claim be and the same is hereby amended by making said Sedgwick and Charles A. Ramsey parties," etc., and the clerk was ordered to issue process against them. Thereupon, the claimant filed an amended complaint, wherein, amongst other things, it was alleged that the note was made payable to the order of "J. T. Cunningham, P't.," and that before it became due, he, for a valuable consideration, indorsed it to said bank by writing his name across the back, a copy of this indorsement and a copy of the note being set out; also, a copy of the credits indorsed upon the note, one of them purporting to be "by B. C. Bowman, Adm. Est. G. L. Lenon." Otherwise there was no reference to the administrator in the amended complaint, which did not mention the death of said Lenon. In the captions of the petition and the amended complaint, the defendants were named as George L. Lenon, Richard Sedgwick and Charles A. Ramsey. Thereafter, Bowman, administrator, filed his demurrer to the amended complaint for want of sufficient facts, stating in the title of the demurrer the names of the defendants as "George L. Lenon, Richard Sedgwick, et al." In the body of this demurrer, it was stated: "In case numbered 11,047, and entitled as above, Benjamin C. Bowman, administrator with the will annexed of the estate of George L. Lenon, deceased, separately and severally, as such administrator, demurs," etc. The court overruled this demurrer.

Later, the defendant Ramsey filed his answer in four paragraphs, and also filed his cross-complaint in three paragraphs against Bowman, administrator, Sedgwick, and the claimant, naming the defendants in the title of the answer as "Bowman et al." and in the title of the cross-complaint as "Benjamin C. Bowman, administrator, et al."

The defendant Sedgwick filed his separate answer to the amended complaint, setting out in the title of the answer, as the names of the defendants, the names of the three signers of the note. The claimant demurred to the third paragraph of the separate answer of Sedgwick, setting out in the title of the demurrer, as the names of the defendants, "Geo. L. Lenon, B. C. Bowman, Adm. et al." The court sustained this demurrer to the third paragraph of the answer of Sedgwick.

Afterward, the court entered a rule against the defendants Bowman, administrator, and Sedgwick to answer the cross-complaint of Ramsey. Upon failure of the administrator and Sedgwick to discharge the rules against them, to answer Ramsey's cross-complaint, the administrator and Sedgwick were called and defaulted, and the matter upon the cross-complaint was submitted to the court, and the court found in favor of Ramsey upon his cross-complaint and adjudged that he was only a surety of said George L. Lenon, deceased, on the note in suit, and that the property of the estate pay the note and be exhausted before levying upon the property of Ramsey.

Afterward, at the same term, the plaintiff and "the defendant" being present by their attorneys, there was a trial by the court, without a jury, and the court "having heard all the evidence and being fully advised in the premises" found for the plaintiff against the defendants, "Benjamin C. Bowman, administrator with the will annexed of the estate of George L. Lenon, deceased, Richard Sedgwick and Charles A. Ramsey, on the note sued on," etc.; and further found that said Ramsey executed the note sued on as surety only, etc., and final judgment was thereupon rendered, against the administrator as such and his codefendants, with an order for the enforcement of the judgment against the decedent's estate before levying on the property of Ramsey. This appeal is brought by Bowman, as administrator, and Sedgwick against the claimant and Ramsey.

On behalf of the administrator, Bowman, it is contended that the court erred in overruling his demurrer to the amended complaint, the objection to the pleading urged in argument being, in effect, that he was not named in the amended complaint, which was in the form of a complaint against the three makers of the note as if they were all in life.

The complaint certainly was defective in form; but upon the whole record before us we can not, upon such ground, treat the overruling of the administrator's demurrer to it as a reversible error. The proceeding was initiated against the estate by the filing of the claim and its entry on the appearance docket as required by the statute. When these things had been done the action was commenced. It was not necessary in the statement of the claim so filed and entered to name the administrator. He became a party by operation of law and was bound to take notice of the filing of the claim without summons or other notice. §§ 2473, 2474 Burns 1894, §§ 2318, 2319 Horner 1897; Taggart v. Tevanny, 1 Ind.App. 339, 27 N.E. 511. If the claim be not admitted by the administrator, it must be transferred to the issue docket for trial as other civil actions, and it is the duty of the administrator to make all available defenses. §§ 2474, 2477 Burns 1894, §§ 2319, 2322 Horner 1897.

In the petition to make additional parties, the granting of which made the occasion for the filing of the amended complaint, the appointment of the administrator was alleged, and the steps which had been taken in the proceeding upon the claim were recited. The administrator, as such, appeared, as was his duty, and defended in the trial court, and the final judgment was rendered, not against the deceased maker of the note, but against the administrator, as such. The various namings of the defendants, though technically wrong, produced no substantial detriment. See Boyl's Adm. v. Simpson, 23 Ind. 393; Niblack v. Goodman, 67 Ind. 174; McConahey's Est. v. Foster, 21 Ind.App. 416, 52 N.E. 619.

In the third paragraph of the answer of the defendant Sedgwick, to which the demurrer of the complainant, the bank, was sustained, it was alleged that Sedgwick executed the note in suit as surety only, and not otherwise, and received no part of the consideration therefor, and that the plaintiff, for a valuable consideration, and without the consent of said surety, extended and postponed for a definite time, the time of the maturity of said note while the holder thereof, and before the maturity thereof, to the principal thereof, and with full knowledge of the foregoing facts.

Upon the face of the note the three signers thereof were joint and several makers, without any indication of the suretyship of any of them. The answer of Sedgwick does not show for whom he was surety, or who received the consideration, or to which of the makers the extension of time was given. The pleading does not show by the averment of facts what consideration was given or promised for the extension of time. It is said that, before the maturity of the note, the time of its maturity was extended. If this is equivalent to a statement that the time of payment was extended beyond the maturity of the note, yet the period of extension, or the time to which payment was extended, is not stated. If the pleading shows that the plaintiff knew that Sedgwick was a surety, it does not show that the plaintiff knew who was Sedgwick's principal.

The statement that the extension was given for a valuable consideration is a statement of a conclusion of law. The particular facts constituting the consideration should be stated in such a pleading, it being for the court to determine from the facts pleaded whether they constitute a consideration legally sufficient to support the promise. Brush v. Raney, 34 Ind. 416; Leach v. Rhodes, 49 Ind. 291; Wheeler v. Hawkins,...