Cummings v. Girton

• Citation: 19 Ind.App. 248,49 N.E. 360
• Parties: CUMMINGS et al. v. GIRTON.
• Decision Date: 03 February 1898
• Court: Court of Appeals of Indiana

19 Ind.App. 248

49 N.E. 360

CUMMINGS et al.

v.GIRTON.

Appellate Court of Indiana.

Feb. 3, 1898.

Appeal from superior court, Marion county; Vinson Carter, Judge.

Action by Charles Girton against Mathew M. Cummings and others to recover on a promissory note. From a judgment for plaintiff, defendants appeal. Affirmed if plaintiff remits $2.84 of the judgment within 30 days; otherwise, reversed.

W. V. Rooker, for appellants. H. J. & C. H. Everett, for appellee.

ROBINSON, C. J.

From the special finding of facts it appears: That on the 13th day of July, 1892, Hugh W. White executed to Mathew M. Cummings the following promissory note: “$60.00. Indianapolis, Ind., July 13, 1892. Four months after date, I, we, or either of us promise to pay to the order of M. M. Cummings sixty dollars and five per cent. attorney's fees, and interest at eight per cent. per annum after maturity until paid. Negotiable and payable at the Indianapolis National Bank, value received, without any relief from valuation and appraisement laws. The drawers and indorsers severally waive presentment for payment, protest, and notice of protest and nonpayment of this note. [Signed] H. W. White.” That Cummings indorsed his name on the back of said note, and afterwards White delivered the note to W. I. Ripley, and received the full consideration thereof. That, before the maturity of the note, Charles Girton, for a valuable consideration, purchased said note from Ripley, who indorsed the same. That, shortly after the maturity of the note, White paid to Ripley $8 in tailoring work, to get him to have Girton to “hold off” from suit. That, some time thereafter, Ripley paid Girton $1.20 on interest past due, and requested Girton to forbear suit, but Girton refused to do so. That during the time since the maturity of the note up to bringing suit, on the 16th day of March, 1895, Girton made frequent demands of both White and Cummings for the payment of the same. That at no time did Girton as owner of the note or otherwise, agree to extend the time of payment of said note to White or Ripley. That there is due on the note, in principal, interest, and attorney's fees, $81.15. The court stated as a conclusion of law that the law is with the plaintiff, and that he should recover said sum.

The suit was commenced before a justice of the peace. The sufficiency of the complaint is questioned for the first time in this court. The evidence has not been brought into the record. It is argued that the complaint is insufficient, for the reason that it does not set out either the original indorsement of Cummings or a copy, and contains no reference to either the original or a copy. The complaint alleges that the “note was indorsed by said Mathew M. Cummings, under the name and style of ‘M. M. Cummings,’ to the said defendant William I. Ripley.” Appellant Cummings answered with the general denial, and, in his second paragraph of answer, that he executed the note as surety, and that without his knowledge or consent, after the maturity of the note, the time of payment was extended one year. A demurrer to the second paragraph of answer was overruled.

Appellants' counsel contend that the complaint is bad, and that the court should have carried the demurrer...