Hawkins v. First Nat. Bank of Marion, 11791.

• Decision Date: 13 May 1924
• Docket Number: No. 11791.,11791.
• Citation: 143 N.E. 709,81 Ind.App. 478
• Parties: HAWKINS v. FIRST NAT. BANK OF MARION et al.
• Court: Indiana Appellate Court

81 Ind.App. 478

143 N.E. 709

HAWKINS

v.FIRST NAT. BANK OF MARION et al.

No. 11791.

Appellate Court of Indiana, Division No. 2.

May 13, 1924.

Appeal from Superior Court, Grant County; Robt. F. Murray, Judge.

Action by the First National Bank of Marion against William L. Hawkins and one Winters who interposed a cross-complaint against defendant Hawkins. Judgment for plaintiff against both defendants, and judgment for defendant Winters against defendant Hawkins, and the latter appeals. Affirmed.

Hays & Hays, of Sullivan, for appellant.

Lett & Lett and Condo & Batton, all of Marion, for appellee.

NICHOLS, J.

This action was begun by appellee the First National Bank of Marion, Ind., in the Grant circuit court against the appellant, as maker, and appellee Winters, as indorser, of a promissory note of $650. A trial in the Grant circuit court resulted in a verdict and judgment in favor of appellee bank, against both appellant and appellee Winters. Afterwards a motion for a new trial by appellee Winters was sustained. Thereafter, on motion of appellant, the cause was venued to the superior court of Grant county, where issues were formed and the cause tried as between the appellant and appellee Winters, appellee bank having received payment in full of its judgment.

[1] It appears from appellant's brief that appellee Winters, mentioned hereafter as appellee, filed a cross-complaint, but the same or the substance thereof is not set out in the briefs. To this cross-complaint, five paragraphs of answer were filed by appellee, of which only the fifth is set out in appellant's brief. To this paragraph the court sustained a demurrer, and this ruling of the court is assigned as error. Appellant having failed to set out the cross-complaint to which his fifth paragraph of answer is addressed, we cannot say that such answer is a good defense thereto and that the court erred in sustaining a demurrer to the answer. Having so failed, appellant presents no question as to his fifth paragraph of answer. Springer v. Bricker, 165 Ind. 532, 76 N. E. 114;Town of Jacksonville v. Humphreys, 170 Ind. 583, 84 N. E. 340;Pry v. Ramage, 176 Ind. 446, 96 N. E. 385;Korporal v. Ramage, 176 Ind. 484, 96 N. E. 385;Chicago, etc., R. Co. v. Wysor Land Co., 163 Ind. 288, 69 N. E. 546;Pittsburgh, etc., Co. v. Brown, 178 Ind. 11, 97 N. E. 145, 98 N. E. 625;Mercer v. State, 179 Ind. 426, 101 N. E. 484;Bucher v. Cameron, 49 Ind. App. 600, 96 N. E. 28;Laatsch v. Andree, 51 Ind. App. 242, 99 N. E. 451;Western Ins. Co. v. Ashby, 53 Ind. App. 518, 102 N. E. 45.

[2] But on its face, and independent of the cross-complaint, the answer is bad. It is averred therein that appellant did not read the contract involved and which he signed, but that he relied upon appellee as to its contents, and that he believed from such representation that it contained certain stipulations upon which the answer is based which are not found therein. It is not averred that he could not read nor that he was prevented from so doing, nor that there was any relation...