Columbia Nat. Bank v. Miller

• Decision Date: 21 November 1918
• Docket Number: No. 9518.,9518.
• Citation: 70 Ind.App. 187,120 N.E. 711
• Parties: COLUMBIA NAT. BANK v. MILLER et al.
• Court: Indiana Appellate Court

70 Ind.App. 187

120 N.E. 711

COLUMBIA NAT. BANK

v.MILLER et al.

No. 9518.

Appellate Court of Indiana, Division No. 1.

Nov. 21, 1918.

Appeal from Probate Court, Marion County; Mahlon E. Bash, Judge.

Proceedings by the Columbia National Bank against William E. Miller, administrator of the estate of Hiram W. Miller, deceased, and others, to collect a claim against the estate. From a judgment of the probate court disallowing petitioner's claim against the estate, the claimant appeals. Affirmed.

Wm. L. Taylor, of Indianapolis, for appellant.

Joseph B. Kealing, Martin M. Hugg, and John W. Claypool, all of Indianapolis, for appellees.

HOTTEL, J.

This is an appeal from a judgment of the Marion probate court denying appellant's claim against the estate of Hiram W. Miller, deceased, based on a certain promissory note alleged to have been executed by the deceased. The only error assigned is that the probate court erred in overruling appellant's motion for a new trial.

[1] Preliminary to a discussion of the questions presented by this ruling appellees assert that because of certain designated omissions and infirmities in the preparation of appellant's brief the rules of court have not been complied with, and by reason thereof the appeal ought not to be considered. On this branch of the case it is sufficient to say that since the filing of appellees' brief appellant has asked and obtained leave to amend its brief, and that by such amendment it is now made to appear that appellant relies for reversal: First, on that ground of the motion for a new trial which challenges the decision of the lower court as being contrary to law; and, second, on those grounds which question certain rulings on the admission of evidence. Since it is appellant's contention that this evidence furnishes the sole basis for the decision below, and that without it the decision is not supported by the proof, the determination of the correctness of the above rulings, will settle, in effect, the only questions properly presented by the briefs and the record. In passing on these questions it should be borne in mind that in proceedings such as the present, proof of all defenses except set-off and counterclaim is admissible under the general denial. Section 2842, Burns 1914.

It is admitted that at the time of his death, and for several years prior thereto, Hiram W. Miller was vice president and a director of appellant bank and active in the affairs of the institution. Some time before the execution of the note sued on, the bank, in order to avoid a depreciation in the value of its stock on the market, bought some of that stock, in violation of the Federal Banking Law, and, for a time, carried the same on its books as cash. There was evidence to the effect that this transaction subjected the bank to criticism from the bank examiners, whereupon the stock was assigned to Mr. Miller as trustee, and in the same capacity he executed his note to the bank for the value of the stock. Later, on advice that the transaction, as it then stood, was illegal, Mr. Miller, in his individual capacity, executed the note which serves as the basis of appellant's claim. It is contended by appellant that when Mr. Miller executed his individual note to the bank, he did so as the purchaser in good faith of the stock which he had previously held as trustee, and that his estate is therefore clearly liable for the amount of the unpaid obligation. Appellees, on the other hand, assert that both the original “trustee note” and the instrument now in suit were executed by Mr. Miller for the purpose of avoiding any embarrassment to the bank which might result from a continued holding of its own stock, and that, in fact, he acquired neither the title to nor the possession of that stock in his individual capacity. Some contention is also made that as the purchase by the bank of its own stock was in violation of law, the subsequent action of Mr. Miller in taking that stock as ...