Fodor v. Popp

• Decision Date: 09 December 1931
• Docket Number: 14,235
• Citation: 178 N.E. 695,93 Ind.App. 429
• Parties: FODOR ET AL. v. POPP
• Court: Indiana Appellate Court

178 N.E. 695

93 Ind.App. 429

FODOR ET AL. v. POPP

No. 14,235

Court of Appeals of Indiana

December 9, 1931

From St. Joseph Superior Court; Orlo R. Deahl, Judge.

Action by Helen Popp against Julius Fodor and another. From a judgment for plaintiff, the defendants appealed.

Affirmed.

D. D Nemeth and Walter R. Arnold, for appellants.

Seebirt Oare, Deahl & Omacht, for appellee.

OPINION

BRIDWELL, C. J.

Appellee instituted this action against appellant Fodor and Frank H. Morris. During the pendency of the action, Frank H. Morris died, and appellant Marjorie B. Morris, as administratrix of his estate, was substituted as a party defendant. Appellee then filed an "amended and supplemental complaint" against appellants, which, omitting caption and signatures, is as follows: "Plaintiff complains of the defendants and for her cause of action alleges:

"That, on or about August 24, 1927, the plaintiff was the owner of certain real estate located in the city of South Bend, St. Joseph County, Indiana; that the defendant Fodor and one Frank H. Morris at said time purchased said real estate of the plaintiff and the plaintiff either assigned or conveyed said real estate, or her interest therein, to said persons pursuant to their contract of purchase and sale; that, in part payment of the purchase price of said real estate, the defendants executed and delivered to the plaintiff their promise to pay the plaintiff the sum of One thousand five hundred sixty and 32/100 dollars ($ 1,560.32), six (6) months after said date. That said promise so executed by said persons is in the words and figures as follows:

" $ 1,560.32 Aug. 24, 1927.

" Six months after date, for value received, we promise to pay to the order of HELEN POPP One Thousand five hundred 32/100 Dollars with interest at the rate of . . per centum per annum at The Fodor State Bank and hereby authorize any Attorney at Law to appear in any Court of Record in the United States, after the above obligation becomes due, and waive the issuing and service of process and confess a judgment against in favor of the holder hereof for the amount then appearing due, together with costs of suit, and thereupon to release all errors and waive all right of appeal.

" JULIUS FODOR & FRANK H. MORRIS

" By FRANK H. MORRIS.'

"That by mutual mistake of the parties in drafting said promissory note the written letters of said note stating the amount to be paid thereon was written as, One thousand five hundred 32/100 Dollars,' but that the amount stated in said note in figures as 1,560.32' was and is the true and correct amount of the debt due and owing from the said persons to the plaintiff, and that it was intended by the parties to promise to pay the sum of One Thousand Five Hundred sixty and 32/100 Dollars ($ 1560.32) and not the sum of One Thousand Five Hundred and 32/100 Dollars ($ 1500.32).

"That the said persons, on the day of December, 1928, paid the plaintiff on the principal of said note the sum of Two Hundred fifty dollars ($ 250.00), but that the balance of the principal and interest thereon at the rate of six per cent (6%) per annum from the 24th day of February, 1928, all in the sum of Fourteen Hundred Dollars ($ 1400) is now due and unpaid.

"That said promissory note should be reformed so as to read that the amount to be paid is the sum of One Thousand Five Hundred sixty and 32/100 Dollars ($ 1560.32) instead of One Thousand Five Hundred and 32/100 Dollars ($ 1500.32).

"That since the bringing of this action Frank H. Morris has died and Marjorie B. Morris is the duly appointed, qualified and acting administratrix of his estate.

"Wherefore, the plaintiff prays for judgment, the reforming of said note in the particulars above stated, and awarding her judgment in the sum of fourteen hundred dollars ($ 1400.00) her costs and for all other proper relief."

Appellants filed a demurrer to the complaint on the ground that it "fails to state facts sufficient to constitute a cause of action against either or both of said defendants." This demurrer was overruled and appellants each excepted. An answer of general denial was then filed. The cause was submitted to the court for trial, and there was a finding and judgment for appellee in the sum of $ 999.45, and costs, from which judgment this appeal is taken, the sole error assigned being that the court erred in overruling appellants' demurrer to the amended and supplemental complaint.

Appellants support their demurrer by memorandum in which they assert that it affirmatively appears from the facts stated in the complaint that the written instrument upon which suit was brought is a cognovit note executed on August 24, 1927, after ch. 227 of the acts of the General Assembly of this state for the year 1927 (Acts 1927 p. 656) was in force and effect; that such a note is void in this state and cannot be enforced.

Our statute, Acts 1927, supra, defines a cognovit note as follows: "That any negotiable instrument, or other written contract to pay money, which contains any provision or stipulation giving to any person any power of attorney, or authority as attorney, for the maker, or any indorser, or assignor, or other person liable thereon, and in the name of such maker, indorser, assignor, or other obligor to appear in any court, whether of record or inferior, or to waive the issuance or personal service of process in any action to enforce payment of the money, or any part claimed to be due thereon, or which contains...