Carskadden v. Pine

• Decision Date: 30 March 1900
• Citation: 154 Ind. 410,56 N.E. 844
• Parties: CARSKADDEN et ux. v. PINE et al.
• Court: Indiana Supreme Court

154 Ind. 410

56 N.E. 844

CARSKADDEN et ux.

v.PINE et al.

Supreme Court of Indiana.

March 30, 1900.

Appeal from circuit court, St. Joseph county; Lucius Hubbard, Judge.

Suit by Leighton Pine and others against William T. Carskadden and wife to foreclose a mortgage, and to recover a personal judgment on notes secured thereby. From a judgment in favor of plaintiffs, and from an order denying a new trial, defendants appeal. Affirmed.

Stuart MacKibbin, for appellants. Brick & Dunnahoo, for appellees.

MONKS, J.

Appellee Pine sued appellant Carskadden and wife to foreclose a mortgage on real estate, and to recover a personal judgment against Carskadden on the promissory notes secured thereby. The cause was tried by the court, a special finding of facts made, and conclusions of law stated thereon against appellants; and over a motion for a new trial a judgment on said note, and a decree foreclosing said mortgage, were rendered. The errors assigned, and not waived, are: (1) The complaint does not state facts sufficient to constitute a cause of action; (2) the court erred in overruling the motion for a new trial.

The notes and mortgage sued upon were executed to Hester Baramore, and appellants insisted that the complaint is fatally defective because the manner in which the notes were assigned was not alleged. It is alleged in the complaint that after the execution of said notes the payee “assigned said notes to Leighton Pine, plaintiff herein, and that he is now the owner of the same.” Section 277, Burns' Rev. St. 1894 (section 276, Rev. St. 1881; section 276, Horner's Rev. St. 1897), provides that, “when an action is brought by the assignee of a claim arising out of a contract and not assigned by endorsement in writing, the assignor shall be made a defendant to answer as to the assignment or his interest in the action.” The allegation that the notes were assigned by the payee to appellee Pine was not equivalent to an allegation that the payee assigned said notes by indorsement in writing, or that the payee indorsed said notes to said appellee. As it was not alleged in the complaint that said notes were assigned by indorsement by the payee thereof to appellee Pine, said section required that the payee be made a defendant to said action. Woollen, Trial Proc. §§ 597, 603; Eichelberger v. Bank, 103 Ind. 401, 3 N. E. 127;Gordon v. Carter, 79 Ind. 386;Reed v. Finton, 63 Ind. 288;Reed v. Garr, 59 Ind. 299;Clough v. Thomas, 53 Ind. 24; Keller v. Williams, 48 Ind. 504; Nelson v. Johnson, 18 Ind. 329. The defect of parties, appearing on the face of the complaint, and not having been taken advantage of by demurrer in the court below, is waived. Section 346, Burns' Rev. St. 1894 (section 343, Rev. St. 1881; section 343, Horner's Rev. St. 1897); 1 Woollen, Trial Proc. §§ 597, 603, 1632; Clough v. Thomas, 53 Ind. 24, 26;Shirts v. Irons, 54 Ind. 13;Bray v. Black, 57 Ind. 417;Groves v. Ruby, 24 Ind. 418, and cases cited; Strong v. Downing, 34 Ind. 300; Thornt. & B. Ann. Ind. Prac. Code, § 276, and note 1. A demurrer to a complaint for want of facts, or an assignment of error in this court that the complaint does not state facts sufficient to constitute a cause of action, presents no question concerning a defect of parties plaintiff or defendant. Strong v. Downing, supra; Shane v. Lowry, 48 Ind. 205;Bray v. Black, 57 Ind. 417;Browning v. Smith, 139 Ind. 280, 290, 291, 37 N. E. 540; 1 Woollen, Trial Proc. §§ 603, 1632, and...