Citizens' Bank v. Bolen

• Decision Date: 19 December 1889
• Citation: Citizens' Bank v. Bolen, 121 Ind. 301, 23 N.E. 146 (Ind. 1889)
• Parties: Citizens' Bank v. Bolen et al.
• Court: Indiana Supreme Court

121 Ind. 301

23 N.E. 146

Citizens' Bank

v.Bolen et al.

Supreme Court of Indiana.

Dec. 19, 1889.

Appeal from circuit court, Jay county; J. R. Bobo, Judge.

Action by Citizens' Bank against Frank Bolen and others, on two promissory notes, and to subject certain real estate to the payment of the notes.Judgment for defendants, and plaintiff appeals.Jaqua & Jaqua and Taylor & Hartford, for appellant.Headington & La Follette, for appellees.

Berkshire, J.

This was an action upon two promissory notes, and to subject certain real estate to sale, to satisfy whatever judgment the appellant, who was the plaintiff in the court below, might recover upon the notes.The complaint, as originally filed, was in two paragraphs, the first of which was afterwards amended, and filed as an amended paragraph.Demurrers were filed and overruled to these paragraphs of complaint, after which the appellees answered by general denial.Afterwards, and by leave of court, the appellant filed two additional paragraphs of complaint, numbered 3 and 4, respectively.The appellees, having been ruled to answer these paragraphs, filed an answer in one paragraph.To this paragraph of answer a demurrer was filed, which was sustained by the court.The record then recites that, the cause being at issue, it was submitted to the court for trial.The first paragraph of complaint is an action on a promissory note and a creditors' bill, combined.The note was executed by the appelleeFrank D. Bolen, payable in the appellant's bank and to one A. W. Cunningham, and by him indorsed to the appellant before maturity.The ordinary allegations found in a creditors' bill to set aside an alleged fraudulent conveyance are found in this paragraph of complaint, and, among others, that the female appellee, to whom the conveyance was made, paid no consideration therefor, and had notice of the fraudulent design charged against the appelleeFrank D. Bolen.It is also charged that the appellees entered into a conspiracy to defraud the creditors of the appellee Frank D., and that the conveyance to the appellee Rebecca M. was the culmination of the conspiracy.The second paragraph of complaint does not differ from the first, except that it rests upon a promissory note executed to Stephens & Son, and payable to their order, in the appellant's bank, and indorsed to appellant, for value, before maturity.The third paragraph of complaint rests upon the same obligation as the first paragraph, and only differs from it in that it omits the allegation of conspiracy, and, instead of a purchase and payment of the purchase money of the real estate here involved by the appellee Frank D., it is alleged that he exchanged other lands for the said real estate, and directed that it be conveyed to the female appellee.The fourth paragraph of complaint is the same as the third, except that it rests upon the same obligation as the second.At the request of the appellant, made at the proper time, the court made a special finding.Upon the special finding as made by the court, it rendered judgment upon the obligations sued upon against the appelleeFrank D. Bolen, for $173.76, and judgment for the appellees as to the bona fides of the conveyance executed to the female appellee.The appellant filed a motion for a venire de novo, which the court overruled, and the proper exception was taken.It then moved the court for a judgment non obstante on the ground that the appellees filed no further answer to the third and fourth paragraphs of complaint after the sustaining of the demurrer to the answer filed by them, as heretofore stated.There was also a motion to vacate the judgment rendered, and to render a judgment for the appellant, which presents the same question that is presented by the motion last above.The substance of the errors assigned are: (1)The court erred in its conclusions of law upon the facts found; (2)the court erred in overruling the motion for a judgment in favor of the appellant upon the third and fourth paragraphs of the complaint; (3) in overruling the motion to vacate the judgment; and (4) in overruling the motion for a venire de novo.

In the face of the recital in the record that the cause was at issue when it was submitted to the court for trial, we cannot very well see how it can be successfully maintained that there was not a sufficient answer on file at that time to the third and fourth paragraphs of complaint.Without such an answer, the cause was not at issue.But, were it otherwise, it has been long and well settled by numerous decisions of this court that where the parties go to trial before the cause is at issue they waive all questions which would otherwise be available to them because of the absence of the necessary pleadings.Lange v. Dammier, 119 Ind. 567, 21 N. E. Rep. 749;Trentman v. Eldridge, 98 Ind. 525;June v. Payne, 107 Ind. 307, 7 N. E. Rep. 370, and 8 N. E. Rep. 556;Johnson v. Briscoe, 92 Ind. 367;City of Warsaw v. Dunlap, 112 Ind. 576, 11 N. E. Rep. 623, and 14 N. E. Rep. 568.

It is well settled that a venire de novo will not be awarded where the special finding or special verdict is not defective in form.If the verdict or finding does not cover all the issues in the case, or all the material facts involved in any of the issues, the remedy is by a motion for a new trial, and not for a venire de novo....