Conant v. First Nat. Bank of Peru

• Decision Date: 30 October 1917
• Docket Number: No. 23262.,23262.
• Citation: 117 N.E. 607,186 Ind. 569
• Parties: CONANT et al. v. FIRST NAT. BANK OF PERU.
• Court: Indiana Supreme Court

186 Ind. 569

117 N.E. 607

CONANT et al.

v.FIRST NAT. BANK OF PERU.

No. 23262.

Supreme Court of Indiana.

Oct. 30, 1917.

Appeal from Circuit Court, Hamilton County; Meade Vestal, Judge.

Action by the First National Bank of Peru against Edward T. Conant and others. Judgment for plaintiff, and defendants appeal. Transferred from the Appellate Court under Burns' Ann. St. 1914, § 1405. Affirmed.

Christian & Christian, of Noblesville, for appellants. Autrim & McClintic, of Peru, and Shirts & Fertig, of Noblesville, for appellee.

LAIRY, J.

Appellee bank recovered a judgment on a promissory note. The errors relied on for reversal and properly assigned are: First, that the trial court had no jurisdiction of the subject-matter of the action, and that this court acquired no jurisdiction by the appeal; second, that the court erred in overruling appellants' demurrer to the complaint; third, that the court erred in overruling appellants' motion in arrest of judgment; and, fourth, that the court erred in overruling appellants' motion for a new trial.

It appears from the complaint that the note in suit was executed to the Brown Commercial Car Company, and that before its maturity said note was sold and assigned to appellee in writing by William B. McClintic, then the duly appointed, qualified, and acting receiver of the Brown Commercial Car Company. The written assignment is set out in the complaint, and it is then alleged that plaintiff purchased said note for value in the usual course of trade before maturity and without any notice of any defense thereto by the makers or either of them, and that said receiver was, by the order of the court wherein he was appointed, to wit, by the District Court of the United States for the District of Indiana, duly authorized to sell and indorse said note as aforesaid.

[1] The execution of the assignment is not denied by a pleading under oath or by an affidavit filed with the pleading, and therefore neither the execution of the assignment nor the authority of the receiver to make it was put in issue. Section 370, Burns 1914; Vannoy v. Duprez (1880) 72 Ind. 26;Harris v. Randolph County Bank (1901) 157 Ind. 120, 60 N. E. 1025.

[2] The assignment being impliedly admitted by a failure to traverse it in accordance with the provisions of the statute, there can be no merit in the argument of appellant to the effect that the note constituted a part of the assets of the Brown Commercial Car Company's estate in bankruptcy of which the federal court for the district of Indiana had sole and exclusive jurisdiction. The court in which the action was brought had jurisdiction of the subject-matter of the action, and the first assignment of error cannot be sustained.

[3] The only objection to the...