Fifth Ave. Sav. Bank v. Cooper

• Decision Date: 04 November 1897
• Citation: 48 N.E. 236,19 Ind.App. 13
• Parties: FIFTH AVE. SAV. BANK v. COOPER et al.
• Court: Indiana Appellate Court

19 Ind.App. 13

48 N.E. 236

FIFTH AVE. SAV. BANK

v.COOPER et al.¹

Appellate Court of Indiana.

Nov. 4, 1897.

Appeal from circuit court, Putnam county; S. M. McGregor, Judge.

Action by the Fifth Avenue Savings Bank against George B. Cooper and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Lewis & Corwin and S. A. Webb, for appellant. Henry H. Mathias, Frank Ader, and Silas A. Hays, for appellees.

HENLEY, J.

Appellant was the plaintiff below, and began the action upon a promissory note. Appellees answered in seven paragraphs. Appellant demurred to each paragraph of the answer, which demurrer was overruled. Appellant replied, and the cause, being at issue, was submitted to a jury for trial. There was a verdict and judgment in favor of defendants. Appellant moved for a new trial, which was overruled.The facts are these: McLaughlin Bros., residents of the state of Ohio, were the owners of a stallion, which they desired to sell. They effected a sale of the horse to a company of farmers in Putnam county for the sum of $3,000. McLaughlin Bros. accepted three $1,000 notes in payment for the horse. These notes were signed by the purchasers, and were payable in a bank in this state, and were negotiable by the law merchant. McLaughlin Bros. transferred these notes by written indorsement, before maturity, to the appellant. The first paragraph of appellees' answer was the general denial. The second, that the note in suit was given without any consideration, and that appellant took it with knowledge of that fact. The third, that appellees signed the note in suit under an agreement with the payees that the note should be signed by certain other parties; also that said other parties refused to sign the note, and the appellant took the note with full knowledge of that fact. The fourth paragraph was a verified answer, alleging that the note was never delivered by the makers to the payees. The fifth paragraph of answer averred that an agent of the said McLaughlin Bros. organized a stock company for the purchase of a certain horse, which they were offering for sale for $3,000, and that the appellees and three other persons subscribed for stock in said company, and that appellees were induced to subscribe for said stock by reason of certain false and fraudulent representations made by the agent of the payees of said note, and were, by false and fraudulent representations of said agent, induced to sign the note in suit; that the horse for which the said note was given was never delivered to appellees; that prior to the transfer of the note to appellant, appellees offered to return the said horse to the payees of said note, and thereupon demanded a return of the said note; and that the appellant took said note with full knowledge and notice of such facts. The same facts are set out in the sixth paragraph of answer as in the fifth, with the additional averment that appellant took said note without paying anything of value therefor. The seventh paragraph of answer avers that before the bringing of the action the payors and indorsers of the note fully repaid the appellant the consideration received for the indorsement of the note. The assignment of error contains three specifications, which we will discuss in their order: First, that the lower court erred in overruling the demurrer of the appellant to the amended answer of the appellees; second, that the lower court erred in overruling the appellant's motion to strike out and suppress parts of the depositions of witnesses; third, that the lower court erred in overruling the appellant's motion for a new trial.

The first specification of the assignment of errors is too indefinite to present any question to this court. A demurrer was overruled by the lower court to six several paragraphs of answer. The sufficiency of but one of these answers is attacked by appellant's counsel in the argument. The particular paragraph of answer should have been designated in the assignment of errors, if appellant desired to attack the ruling of the lower court in this court. Elliott, App. Proc. § 337; Bolin v. Simmons, 81 Ind. 92;Higgins v. Kendall, 73 Ind. 522. Nor can the court notice any question presented by appellant depending in any way for its decision upon the evidence, as the evidence is not properly before us. In order that the original longhand transcript of the official shorthand reporter's notes be made a part of the bill of exceptions, the record must affirmatively show that said transcript was first filed in the clerk's office, afterwards incorporated in the bill of exceptions, then presented to the trial judge, and authenticated by his signature. It then becomes a part of the bill of exceptions. The bill of exceptions must then be filed with the clerk, and the matters properly contained therein become a part of the record. Manley v. Felty (Ind. Sup.) 45 N. E. 74;Railway Co. v. Cope (Ind. App.) 45 N. E. 806. The record in the cause shows that on the 22d day of August, 1896, a bill of exceptions designated as “Bill of Exceptions No. 2,” was filed in the office of the clerk of the circuit court, which bill of exceptions contained the longhand manuscript of the evidence as taken and prepared by the official reporter in this cause. The record further shows that on the 21st day of August said bill of exceptions No. 2, containing the evidence, was presented to the trial judge, and by him signed. It is further shown in the certificate of the clerk, attached to the manuscript, that the official reporter who took the evidence in this cause filed in the clerk's office her longhand manuscript thereof on the 22d day of ...