Carlson v. Kesler, 14958.

• Decision Date: 25 November 1935
• Docket Number: No. 14958.,14958.
• Citation: 103 Ind.App. 350,198 N.E. 451
• Parties: CARLSON v. KESLER et al.
• Court: Indiana Appellate Court

103 Ind.App. 350

198 N.E. 451

CARLSON

v.KESLER et al.

No. 14958.

Appellate Court of Indiana, in Banc.

Nov. 25, 1935.

Appeal from Superior Court, Grant County; Oren W. Dickey, Judge.

Action by William E. Koch against Lloyd Kesler and Harry Kesler, partners doing business under the firm name of Kesler & Kesler, and others, in which Lawrence E. Carlson, administrator, was substituted on plaintiff's death. From an adverse judgment, substituted plaintiff appeals.

Affirmed.Arthur D. Sayler, of Huntington, and Howard F. Bishop, of Chicago, Ill., for appellant.

Herbert B. Spencer, Bowers, Feightner & Bowers, Otto Krieg, Wm. D. Homer, R. G. Shreck, and E. O. King, all of Huntington, for appellees.

WOOD, Judge.

On March 22, 1929, the appellees Anthony Mango and Concetta Mango, his wife, executed their promissory note and a mortgage upon real estate in the city of Huntington, Ind., to secure payment of said note to a trustee for St. Mary's Church of said city, for money borrowed from said church. On May 10, 1929, Anthony Mango and his wife by their deed conveyed the real estate upon which they had executed said mortgage to their co-appellees Philip Mango and Genevieve Mango, his wife, who as a part of the consideration for this conveyance assumed and agreed to pay said mortgage indebtedness. The note was due one year after date. On March 21, 1930, the amount of the principal of the note and interest due thereon was paid to the mortgagee by one Arthur D. Sayler in a representative capacity, and upon his request the note and mortgage were assigned without recourse on the mortgagee, to appellant's decedent, William E. Koch. On April 19, 1930, William E. Koch, as such assignee, brought an action in the Huntington circuit court for the purpose of collecting said note and foreclosing the mortgage given to secure payment thereof, making the appellees, some of whom he alleged were asserting an interest in said real estate, adverse to his rights, parties defendant thereto. Two of the appellees claiming an interest in said real estate as designated trustees in a mortgage on the real estate, given to them by the appellees Philip Mango and his wife to secure an issue of bonds, and other appellees claiming an interest in said real estate, as holders of mechanics' liens, filed against the real estate for material furnished and labor performed in the erection of a building thereon, instituted independent actions against appellant's decedent, and other designated defendants who are named as appellees herein, to foreclose their respective liens. These actions upon an order of the court were all consolidated under the action brought by appellant's decedent, for the forming of issues, trial, and judgment. In the forming of issues between the various parties, numerous complaints, answers, and replies thereto, together with cross-complaints, answers, and replies thereto, many of which pleadings are voluminous, were filed. Since the appellant is the only party to the judgment of the lower court questioning its correctness and appealing therefrom, it is not necessary, for the purpose of this opinion, that we set out herein all the issues tendered by these various pleadings, so we confine ourselves to a general synopsis of the pleadings forming the issues upon which the cause was tried and determined between appellant and those of the appellees asserting an interest in the real estate and contesting the right of appellant's decedent, as alleged assignee of the note and mortgage on which he brought suit, to a judgment on the note and for foreclosure of the mortgage.

The complaint of William E. Koch was in the usual form of an action on a promissory note and foreclosure of a mortgage upon real estate given to secure its payment. Several of the appellees who were made parties defendant to this action as adverse holders of liens on the real estate in question filed separate and several answers to this complaint, all of which were of the same general tenor and effect. Some of these answers consisted of five paragraphs, the first was a general denial, the second pleaded payment, the third alleged that William E. Koch was not the real party in interest in said action; that the note and mortgage sued upon were fully paid and satisfied before the bringing of the action; that the payment was not made by Koch or by any one in his behalf, but that said note and mortgage was paid by parties unknown to the answering defendant; that Koch was a mere interloper and volunteer and had no interest in the note and mortgage sued upon; the fourth alleged want of consideration; and the fifth, which was verified, pleaded non est factum of the assignment of the note and mortgage to Koch. There was no motion filed to require these affirmative paragraphs of answer to be made more specific, nor were they questioned by demurrer for failure to state facts sufficient to constitute a cause of defense to appellant's action.

Appellant's decedent filed a reply in general denial to the second, third, and fourth paragraphs of these several answers.

The record discloses that William E. Koch died during the progress of the proceedings in the lower court, and appellant, as administrator of his estate, was substituted in his stead.

On change of venue the cause was sent to the superior court of Grant county where it was tried.

At the request of the parties, the court made a special finding of facts and stated its conclusions of law thereon, in accordance with which judgment was rendered against appellant. Within proper time appellant filed a motion for a new trial which was overruled, hence this appeal.

The only errors assigned for reversal requiring our consideration are: “(1) The court erred in overruling appellant's motion for a new trial; (2) the court erred in giving judgment against Anthony Mango, Concetta Mango, Philip Mango, Genevieve Mango, and each of them separately and severally, there being no service of summons or notice as to them or either of them, and there being no appearance by them or either of them.”

Among the facts found by the court and pertinent to a determination of this cause are the...