Childers v. First National Bank of Jeffersonville

• Decision Date: 09 April 1897
• Docket Number: 18,171
• Citation: 46 N.E. 825,147 Ind. 430
• Parties: Childers v. First National Bank of Jeffersonville et al
• Court: Indiana Supreme Court

46 N.E. 825

147 Ind. 430

Childers v. First National Bank of Jeffersonville et al

No. 18,171

Supreme Court of Indiana

April 9, 1897

From the Floyd Circuit Court.

Affirmed.

Laurent A. Douglass, for appellant.

H. A Burtt, J. E. Taggart and M. Z. Stannard, for appellees.

OPINION

Monks, J.

Appellant brought this action against appellees. The complaint was in two paragraphs. Appellees each filed separate answers in two paragraphs. Appellant's demurrers to the second paragraphs of said answers were overruled. The trial of said cause by the court resulted in a finding and, over a motion for a new trial, judgment in favor of appellees.

The errors assigned call in question the action of the court in overruling the motion for a new trial, the demurrer to the second paragraph of the answer of the bank and the demurrer to the second paragraph of the answer of Sweeney.

The first paragraph of the complaint, so far as necessary to the determination of the questions presented, is substantially as follows: "On July 5, 1897, appellant executed his promissory note to the appellee, the First National Bank of Jeffersonville, for $ 1,580.00. At the same time and to secure said note he deposited with said appellee bank, four bonds executed by Breathitt county, Kentucky, of the denomination and value of five hundred dollars each, being numbered respectively 5, 7, 8, and 9.

"That afterwards, on August 15th, 1887, appellant entered into an agreement with the appellee, Patrick H Sweeney, under the terms of which said Sweeney was to pay off and take up said note and stop the interest thereon, and take all of said bonds in payment of the money expended by him in paying off said note, and the excess in value of the bonds in excess of the amount of said note to be paid appellant in cash; that at the time of making said agreement appellant executed a written order to the said appellee bank to deliver said Sweeney said bonds and note upon the payment by said Sweeney of said notes; that said Sweeney did not comply with the terms of said agreement and order by paying off said note, but on the contrary, permitted said note and bonds to remain in the possession of said bank until the proceeds of said bonds paid off said note; that said Breathitt county paid said bank on said bonds from time to time, until June 18, 1892, when the amount so paid was sufficient to pay off said note and interest and was so applied, and that the same is fully paid and has been since June 18, 1892; that since that date said bank has collected on said bonds remaining unpaid over and above the amount necessary to pay off said note the sum of six hundred and nineteen dollars; that said bank is in possession of one of said bonds, being No. 9, and although before the commencement of this action appellant demanded the payment of said $ 619.00 and the return of said bond the bank refused to deliver said bond or pay said money to appellant; that said appellee, Sweeney, is claiming some interest and asserting that he is the owner of said bond No. 9 and the six hundred and nineteen dollars, but he has no claim of ownership in said bond or money or any part thereof."

The prayer of the complaint is that appellant have judgment against the bank for one thousand dollars and for an injunction against the bank from paying said money, and delivering said bond to Sweeney, and for an injunction against Sweeney receiving said money and bond from said bank.

The second paragraph of the complaint is substantially the same as the first except it avers a disaffirmance of the order to the bank, and that notice of its disaffirmance of said order was given to the bank, and that notwithstanding such disaffirmance and notice, the bank paid to Sweeney the money derived from the bonds over the amount necessary to pay said note and interest.

The second paragraph of answer of the bank admitted the execution of the note by appellant, the pledge of the bonds as collateral security therefor, the payment of the bonds 1, 2, 7, 8, and that out of the money so paid, the note, principal and interest, was paid; that appellant in August, 1887, executed and delivered to said bank a written order directing the bank to deliver to Patrick H. Sweeney the five hundred-dollar Breathitt county bonds and also appellant's note on payment thereof. And that said bank denied each and every other allegation in each paragraph of the complaint not admitted in said paragraph of answer. A copy of said order is set out in said paragraph.

It is earnestly insisted that the court erred in overruling appellant's demurrer to this paragraph of answer.

This paragraph of answer denies every allegation in the complaint not admitted in said paragraph. Unless, therefore, the...