Calumet Lumber Co. v. Pearson

• Decision Date: 23 January 1940
• Docket Number: No. 16109.,16109.
• Citation: 24 N.E.2d 793,107 Ind.App. 343
• Parties: CALUMET LUMBER CO. v. PEARSON et al.
• Court: Indiana Appellate Court

107 Ind.App. 343

24 N.E.2d 793

CALUMET LUMBER CO.

v.PEARSON et al.

No. 16109.

Appellate Court of Indiana, in Banc.

January 23, 1940.

Appeal from Superior Court, Lake County; Homer E. Sackett, Judge.

Action by Wilford W. Pearson, as receiver of and for Peoples National Bank & Trust Company of Chicago, Ill., against the Calumet Lumber Company upon a written guaranty of a certain note, which guaranty was purportedly executed by defendant. From a judgment for the plaintiff, defendant appeals.

Affirmed.Joseph A. Meade, of E. Chicago, and Bomberger, Peters & Northland, of Hammond, for appellant.

Kenneth Call, of Gary, for appellees.

DUDINE, Judge.

This is an action instituted by Wilford W. Pearson, as Receiver of and for Peoples National Bank and Trust Company of Chicago, Illinois, upon a written guaranty of a certain promissory note which guaranty was purportedly executed by appellant.

The issues were formed by a complaint in one paragraph, which set out the note and the written guaranty, and an answer in two paragraphs. The first paragraph of answer was a general denial and the second paragraph alleged, among other facts, that appellant “did not endorse and guarantee the payment of said note; that the records of the said corporation (appellant) show that no such officer or agent of said corporation was authorized to endorse or guarantee the payment of said note.” Neither of said paragraphs of answer was verified.

The cause was submitted to a jury for trial on June 15, 1936. After some evidence was presented the cause was withdrawn from the jury and jury trial was waived, all by agreement of parties, and the cause was continued until June 30, 1936 for trial by the court.

The record further shows that “on the 15th day of June, (the date when said cause was submitted to the jury for trial as aforesaid) * * * now comes the defendant, Calumet Lumber Company, and tenders and asks leave to file third paragraph of answer in non est factum”; that appellee objected to the tender and filing of such answer and that the court sustained said objections and refused to permit the filing of such answer. The record does not show whether said tender was made before or after the trial began.

The record further shows that on June 30, 1936 the cause was submitted to the court for trial without a jury and that after some of the evidence was presented appellant “* * * renews its tender of a verified answer of general denial * * *”; that appellee then and there objected to such tender and to the filing of such answer and the court sustained the objections and refused to permit the filing of such answer.

The court having heard all of the evidence found for appellee (plaintiff below) that he recover from appellant on the guaranty and the court rendered judgment accordingly.

The errors assigned upon appeal and discussed in appellant's brief are contended errors in refusing the tender, by appellant, of its answer of non est factum and in refusing to permit appellant to file...