Breyfogle v. Stotsenburg

• Decision Date: 26 October 1897
• Docket Number: 18,201
• Citation: 47 N.E. 1057,148 Ind. 552
• Parties: Breyfogle et al. v. Stotsenburg, Trustee
• Court: Indiana Supreme Court

47 N.E. 1057

148 Ind. 552

Breyfogle et al. v. Stotsenburg, Trustee

No. 18,201

Supreme Court of Indiana

October 26, 1897

From the Clark Circuit Court.

Affirmed.

Jewett & Jewett and Kelso & Kelso, for appellants.

A Dowling, George H. Voigt and Evan B. Stotsenburg, for appellee.

OPINION

McCabe, C. J.

The appellee, as the assignee for the benefit of creditors of the New Albany Banking Company, sued the appellants in the Floyd Circuit Court to collect an indebtedness of $ 146,076.44 evidenced by six promissory notes executed by said defendants, and by them also as the firm of Winstandley &amp Co., and to obtain an order for the sale of 812 1-2 shares of the capital stock of the Peerless Manufacturing Company, of Louisville, Kentucky, and 490 shares of the capital stock of the Little Falls Water Power Company, of Little Falls, in the state of Minnesota, represented by variously numbered certificates of stock specified in the complaint.

The issues formed were tried by the Clark Circuit Court, to which court the cause went on change of venue, resulting in a general finding for the plaintiff, upon which the court rendered judgment. The assignment of errors not waived by failure to discuss the same, call in question the rulings of the trial court in sustaining certain demurrers to certain separate answers by certain of the defendants. The appellee objects to the sufficiency of the assignments of error, because each appellant has assigned error of which he complains and affecting him alone, under one and the same single title of the cause or appeal. It is contended that this objection can only be obviated by making as many titles to the appeal as there are separate assignments of error. In support of this proposition we are cited to rule six of this court and Snyder v. State, ex rel., 124 Ind. 335. Neither the rule nor the case cited afford any support to the proposition urged. The proposition is illogical, under the settled rule that there can be but one appeal from a joint judgment, whether the parties thereto are many or few. One appeal ought not to have different titles as a cause in this court, nor need the same title be repeated every time one of the appellants assigns error separately on such appeal. See Gregory v. Smith, 139 Ind. 48, 38 N.E. 395.

The first alleged error complained of is the ruling sustaining the plaintiff's demurrer to the third paragraph of the separate answer of the defendant Breyfogle. It is very difficult to determine just what the paragraph means, on account of the confused and uncertain method of statement of the facts therein relied on as a defense. So far as we are able to decipher it, the substance thereof is, that the notes sued on were given in consideration of the sale and transfer to the said defendant of certain assets and choses in action belonging to said bank, by order of the Floyd Circuit Court to the plaintiff, as the assignee, so to sell and transfer the same. That pursuant to said order said assets and choses in action had been sold and delivered to said defendant Breyfogle by said assignee; and that said order provided that said assignee should make a report to said court of such sale and transfer for approval at the succeeding term of the Floyd Circuit Court; that no such report has ever been made by said assignee. The theory of this pleading doubtless, as appears from its own statements, as well as from appellant's brief, is intended as a plea of failure of consideration for the notes in suit. It is contended by said appellant that the failure to report the sale, and the failure of the court to confirm it, operates to prevent the title to the property sold and delivered from passing to him. It may be conceded that the title is not perfect without a report of the sale is made, and the same confirmed by the court. But, still, that does not...