Charters v. Miller

• Decision Date: 26 June 1923
• Docket Number: No. 11602.,11602.
• Citation: 80 Ind.App. 244,140 N.E. 441
• Parties: CHARTERS et al. v. MILLER.
• Court: Indiana Appellate Court

80 Ind.App. 244

140 N.E. 441

CHARTERS et al.

v.MILLER.

No. 11602.

Appellate Court of Indiana, Division No. 2.

June 26, 1923.

Appeal from Circuit Court, Miami County; Joseph N. Tillett, Special Judge.

Action by Bettie M. Miller against Charles M. Charters and the Citizens' National Bank of Peru, Ind. Judgment for plaintiff against both defendants, and for the bank against the individual defendant for any sums that it was required to pay in satisfaction of the judgment, and defendants appeal. Affirmed.

David E. Rhodes and Russell R. Rhodes, both of Peru, for appellants.

Hurd J. Hurst, of Peru, and Long & Yarlott, of Logansport, for appellee.

NICHOLS, J.

Action by appellee to recover money alleged to have been delivered by appellee to appellant Charters, who was at that time acting as cashier of appellant bank, for the purpose of buying $200 worth of Liberty Bonds; it being alleged that the money was never returned to her, and that no bonds were delivered to her. The complaint is in two paragraphs: the first being a common count for money had and received, while the second sets up the facts relied upon in detail. Appellant Charters answered in general denial. Appellant bank filed a cross-complaint, in which it alleged that it did not receive any of the money alleged to have been delivered by appellee to appellant Charters, and received no benefit therefrom. It asked that, in the event appellee recovered a judgment, appellant bank be found only secondarily liable for its payment, and that the property of appellant Charters be exhausted before any recourse was had against it for the payment of such judgment. A demurrer to this cross-complaint was filed by the appellee, and withdrawn before it was ruled upon. Answers in general denial to the cross-complaint were filed by appellee, and by appellant Charters. There was a trial by the court, which resulted in a finding for appellee against both appellants for the sum of $231, and a finding for the appellant bank on its cross-complaint to the effect that the allegations thereof were true, and that it did not receive the money placed in Charters' hands. The court later, on motion of appellant bank, modified and amplified its finding by adding thereto that the bank was entitled to recover of and from Charters any amount which it might be compelled to pay in satisfaction of the judgment. On April 28, 1922, the court rendered judgment on such finding in favor of appellee and against both appellants in the sum of $231 and costs, and further adjudged and decreed:

“That the defendant bank did not receive any of the money found to have been delivered by plaintiff to the defendant Charters, and received no benefit therefrom, and that said defendant bank have and recover of and from said defendant Charters any amount which it may be compelled to pay in satisfaction of this judgment.”

[1] On May 29, 1922, appellant Charters filed a motion for a new trial, and also a motion to modify the judgment by eliminating and...