Conant v. First National Bank of Peru

• Decision Date: 30 October 1917
• Docket Number: 23,262
• Parties: Conant et al. v. First National Bank of Peru
• Court: Indiana Supreme Court

117 N.E. 607

186 Ind. 569

Conant et al. v. First National Bank of Peru

No. 23,262

Supreme Court of Indiana

October 30, 1917

From Hamilton Circuit Court; Meade Vestal, Judge.

Action by the First National Bank of Peru against Edward T. Conant and others. From a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under § 1405 Burns 1914, Acts 1901 p. 590.)

Affirmed.

Christian & Christian, for appellants.

Antrim & McClintic and Shirts & Fertig, for appellee.

OPINION

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; secondly, that the court erred in overruling appellants' demurrer to the complaint thirdly, that the court erred in overruling appellants' motion in arrest of judgment; and fourthly, 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 endorse said note as aforesaid.

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. § 370 Burns 1914, § 364 R. S. 1881; Vannoy v. Duprez (1880), 72 Ind. 26; Harris v. Randolph Co. Bank (1901), 157 Ind. 120, 60 N.E. 1025.

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.

The only objection to the complaint pointed out by the memorandum filed with the demurrer is that such complaint does not allege that the receiver had any authority, direction or order of the court of which he was an officer to sell or assign said note to appellee. In this appellant is...