Bright Nat. Bank of Flora v. Hartman

• Decision Date: 14 October 1915
• Docket Number: No. 8753.,8753.
• Citation: 109 N.E. 846,61 Ind.App. 440
• Parties: BRIGHT NAT. BANK OF FLORA v. HARTMAN et al.
• Court: Indiana Appellate Court

61 Ind.App. 440

109 N.E. 846

BRIGHT NAT. BANK OF FLORA

v.HARTMAN et al.

No. 8753.

Appellate Court of Indiana, Division No. 1.

Oct. 14, 1915.

Appeal from Circuit Court, Blackford County; Henry Eichhorn, Judge.

Action by the Bright National Bank of Flora, Indiana, against Joseph B. Hartman and others. Judgment for defendants, and plaintiff appeals. Affirmed.J. Earl Fouts and Leffier, Ball & Needham, all of Muncie, and L. B. Simmons, of Hartford City, for appellant. Meade S. Hays, of Marion, and Geo. H. Koons, of Muncie, for appellees.

FELT, J.

This suit was brought by appellant as assignee of a certain promissory note purchased from the administratrix of the estate of William M. Doty, deceased. The suit was commenced in the Grant circuit court, where all the issues were formed. The first five specifications of alleged error relate to rulings of the Grant circuit court in the formation of the issues. After the issues were formed, the case was sent to the Blackford circuit court on change of venue. The other assignments allege error of the Blackford circuit court in overruling appellant's motion to suppress the deposition of F. A. Wood and in overruling its motion for a new trial.

Appellees contend that no question relating to the proceedings in the Grant circuit court is duly presented and support their contention by the following propositions: (1) The præcipe is not sufficient to authorize the incorporation of such proceedings in the transcript on appeal; (2) the clerk of the Blackford circuit court has not duly certified the proceedings of the Grant circuit court to this court; (3) no official seal is shown to be attached to the certificate of the clerk of the Grant circuit court in certifying the proceedings to the Blackford circuit court; (4) the pleadings copied into the transcript are not duly identified as the pleadings on which the rulings of the Grant circuit court were based.

[1][2][3] Considering the points suggested in the reverse order, we find that the transcript filed in this court does not show by any caption, statement, or certificate of the clerk of the Grant circuit court that the original pleadings and papers on file in that court were transmitted to the Blackford circuit court, but it does appear from what purports to be the certificate of said clerk of the Grant circuit court, copied into the transcript to this court, that “a full, true, and complete copy of all the order book entries showing the proceedings” in the case was transmitted to the Blackford circuit court, though the record does not indicate that the seal of the clerk was attached thereto. Certain pleadings appear as a part of such transcript.

The clerk of the Blackford circuit court certifies that the transcript “contains full, true and correct copies of the originals of all pleadings, papers, documents, and record filed or placed on file *** in the office of the clerk of” the Blackford circuit court, and “full, true, and correct copies or the originals of all papers and entries in said cause as requested by the above and foregoing præcipe.” The præcipe calls for “a transcript of all pleading, papers, documents, and records filed or placed on file in the above-entitled cause, *** and all and singular of the papers, pleadings, documents, and proceedings and order book entries made and filed in said cause in the Grant superior court and all motions, oral or written.” The præcipe is sufficient. On change of venue from a county, the statute requires the clerk to “forthwith transmit all the papers and a transcript of all the proceedings to the clerk of the court of the county to which the venue is changed.” On the record presented, this court is warranted in treating the pleadings copied into the transcript as the pleadings on which the case was tried; or, in other words, appellee, not having previously made any contention to the contrary, will not now be heard to say that such is not the fact. But such holding does not enable us to know to a certainty that the pleadings copied into the transcript from the Blackford circuit court are the identical pleadings, the sufficiency of which were questioned by demurrer in the Grant circuit court. There is nothing in the record to enable this court to know that the pleadings, to which the demurrers were addressed, were transmitted to the clerk of the Blackford circuit court, or that the pleadings copied into the transcript on appeal are identical with those pleadings. Consolidated Stone Co. v. Staggs, 164 Ind. 331-333, 73 N. E. 695;Chicago, etc., Ry. Co. v. Reyman, 166 Ind. 278, 279, 76 N. E. 970;Evansville Furniture Co. v. Freeman, 107 N. E. 27; So. Ind. Ry. Co. v. Martin, 160 Ind. 280-282, 66 N. E. 886;Smith v. Jeffries, 25 Ind. 376, 377;Durbin v. Northwestern Scraper Co., 36 Ind. App. 123-125, 73 N. E. 297;Indianapolis, etc., Transit Co. v. Andis, 33 Ind. App. 625-628, 72 N. E. 145;Dederick v. Baumgartner, 46 Ind. App. 403, 92 N. E. 663;Peterson v. Liddington, 108 N. E. 977.

For the reasons above stated, and on the authority cited, we hold that the record does not sufficiently identify the pleadings to enable this court to pass upon the questions sought to be raised by the assignments of error relating to the sufficiency of the pleadings.

[4] The error, if any, in overruling appellant's motion to suppress the deposition of F. A. Wood, is waived by failure to present the same in appellant's brief.

Under the assignment of error relating to the overruling of the motion for a new trial, appellant has suggested numerous errors relating to the evidence and the instructions.

[5] Appellee contends that appellant's præcipe does not call for all the instructions; that it is not general, but specifically directs the clerk as to the instructions to be included in the transcript, and does not call for those tendered by appellant and given.

The first part of the præcipe is general and is broad enough to include all the instructions. The specific directions are not in conflict with the general præcipe, and therefore do not exclude any of the instructions, all of which are copied into the transcript. Hartlage v. L. & N. Ry. Co., 180 Ind. 666-667, 103 N. E. 737;Helms v. Cook, 108 N. E. 147-150.

To enable us to dispose of the questions relating to the evidence and the instructions, it is necessary to briefly state the character of the issues tried. The suit was on a promissory note executed by the appellees and assigned and transferred to appellant for value before maturity. The note was payable to the “Medical Chemical Company,” in which name William M. Doty conducted his business. The administratrix of the estate of said Doty, by petition to the Delaware circuit court, showed that the decedent, in his lifetime, conducted the business of manufacturing and selling certain powders or stock foods in the name of the “Medical Chemical Company” and was the sole proprietor of the business; that the note of appellees, now in suit, was given for stock food purchased in the regular course of business by appellee Joseph B. Hartman, for resale in certain designated territory in the state of Indiana; that the note was a part of the assets of the personal estate of said decedent, but not then due. On this petition the court made an order for the sale and transfer of the note and appellant became the purchaser. Issues were formed by an answer to the complaint in five paragraphs, the first of which was a general denial. The second paragraph proceeds on the theory that the business of the decedent, to whom the note was given, was subject to regulation by the pure food and drug laws of the state of Indiana; that the stock food for which the note was given was manufactured at South Omaha, Neb., and was subject to the act of Congress approved June 30, 1906 (chapter 3915, 34 Stat. 768 [U. S. Comp. St. 1913, §§ 8717-8728]), prohibiting the manufacture or transportation of adulterated or misbranded or deleterious foods and drugs; that neither of said laws were complied with by the decedent and the business was conducted in violation thereof; that appellant was not an innocent purchaser. The third paragraph of answer is on the theory that the stock food was worthless and there was no consideration for the note and that appellant was not an innocent purchaser. The fourth paragraph was substantially the same as the third. The fifth paragraph goes into detail to show that the powder or stock food sold appellee Joseph Hartman, on contract, and for which the note in suit was given, had no value; that the contract of sale was procured by fraudulent representations of the vendor as to the nature and value of the stock food and drugs sold and as to the vendor's right to manufacture and sell the same; that the business was carried on in violation of the laws of Indiana (Acts of 1907, sections 7638, 7939, et seq., Burns' 1914 Statutes), and of the pure food laws of the United States; that the note in suit was executed without any consideration therefor; that appellant had notice of the nature and character of the transaction and business aforesaid before the note in suit was purchased. The first paragraph of reply is a general denial. The paragraphs of special reply allege, in substance, that appellant was a good-faith, innocent purchaser for value before maturity, in the usual course of business, of the note in suit, which is a negotiable instrument payable at Marion National Bank, Marion, Ind.

[6] It is the law in Indiana that where a statute...