Hinshaw v. Sec. Trust Co.
| Decision Date | 12 January 1911 |
| Docket Number | No. 7,504.,7,504. |
| Citation | 48 Ind.App. 351,93 N.E. 567 |
| Parties | HINSHAW v. SECURITY TRUST CO. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Marion County; Frank B. Ross, Judge.
Proceedings by the Security Trust Company, executor for Pierre Gray. From a judgment disallowing the claim of Benjamin E. Hinshaw, administrator de bonis non of Eliza J. Gray, and against the executor on a set-off, claimant appeals. Affirmed.Morton S. Hawkins, Frank B. Jaqua, and Clarence R. Martin, for appellant. W. L. Taylor, L. B. Ewbank, and John W. Kern, for appellee.
This is an appeal from a judgment of the probate court of Marion county founded on a claim filed by the appellant against the appellee. The appellee is the executor of the last will and testament of Pierre Gray and the appellant is the administrator de bonis non of the estate of Eliza J. Gray, who in her lifetime was the mother of Pierre Gray. The claim filed in favor of the mother's estate was based upon two notes, one for $3,000 and one for $1,000, and was in words and figures as follows: “Estate of Pierre Gray, deceased, to estate of Eliza J. Gray, two notes payable to Eliza J. Gray, for $1,000 and $3,000 respectively, dated April 5, 1897, 6 per cent. interest after date, due one day after date, payable at the Indiana National Bank of Indianapolis, Ind.” Notation on face of $1,000 note: “Collateral Stock Certificate No. 94, 10 shares First National Bank, Noblesville, Ind.” On $3,000 note: “Collateral Stock Certificate No. 93, 50 shares First National Bank Noblesville, Ind.” Three indorsements on backs: The claim was properly verified.
To this claim, in addition to the answer that the law put in, the appellee filed an answer in set-off alleging in substance that the estate of Eliza J. Gray, at the time of her death, was indebted to Pierre Gray in the sum of $6,240; that on the 14th day of February, 1905, and from that time forward until the death of Pierre Gray, on the 25th day of December, 1907, the said Pierre Gray, Eliza J. Gray, and Bayard Gray were the equal owners in fee simple of a residence property situate on North Pennsylvania street in Indianapolis, Ind., and that said Eliza J. Gray, who was the mother of Pierre Gray, resided in the same residence property with Pierre Gray and his wife; that a contract was entered into, whereby Pierre Gray was to pay one-third of the expenses of maintaining the property, Eliza J. Gray one-third, and Bayard Gray one-third; that after said contract was entered into, Eliza J. Gray continued to live in the residence property, and that all the expenses heretofore referred to were paid by Pierre Gray, amounting in the aggregate to about $2,955; that Eliza J. Gray never paid the one-third of said expenses in accordance with agreement, and that she was at the time of her death indebted in the sum of one-third of the aggregate of said expenses, which the defendant below asked to have set off against the claim filed by the administrator of the estate of Eliza J. Gray. The cause was submitted to the court without the intervention of a jury, the evidence heard, and a general finding rendered by the court against the claimant, and also against the defendant on the set-off. A motion for a new trial was filed by the claimant, which was overruled, and judgment entered in the court below against the estate of Eliza J. Gray on the claim filed by the administrator, and also against the estate of Pierre Gray in the set-off filed by his executor. From this judgment, the administrator of the estate of Eliza J. Gray appealed to this court.
Appellee has assigned a cross-error in which he alleges that the claim filed in the court below does not state facts sufficient to constitute a cause of action. The question presented on the cross-error will be first considered, for the reason that if the claim filed is insufficient to sustain a judgment in favor of appellant, the judgment below in favor of appellee must be sustained, regardless of any other question presented. There was no demurrer filed in the court below to the claim; its sufficiency being challenged for the first time by assignment of error in this court. Had the claim been challenged by demurrer, there might have been serious doubts as to its sufficiency, for the reason that no copies of the notes upon which the claim is based are set out in the claim or filed with it as an exhibit; nor does the claim show affirmatively that said notes were signed by Pierre Gray in his lifetime. We think, however, that the claim is sufficient when attacked for the first time in this court. It appears in the record that two notes signed by Pierre Gray, and corresponding in dates and amounts to those described in said claim, were introduced in evidence at the trial. No objection was made by appellee to the introduction of this evidence, and the signatures of Pierre Gray to these notes were admitted. It has been repeatedly decided that, if the facts stated in a complaint are such that a judgment thereon would bar another action for the same cause, such complaint will be held sufficient when first attacked on appeal.
The only error relied on for reversal is the overruling of the motion for a new trial. This motion is very voluminous, covering 50 pages of the record. In determining, therefore, what rulings of the lower court are relied on for reversal, this court will consider only such questions arising on the motion for a new trial as have been presented and discussed by appellant in his brief. All other questions will be considered as waived.
Before considering any of the questions presented, it is well to state concisely what the points were in issue at the trial. Under the issues as formed, any evidence could have been offered that would tend to defeat the claim on any ground or to prove the set-off pleaded. The evidence, however, was directed to only three questions of fact, namely, the statute of limitations, the question of advancement, and the facts pleaded by way of set-off.
The notes described in the claim and introduced in evidence were due, as disclosed by the notes themselves, more than 10 years before the date on which said claim was filed. The notes were therefore prima facie barred by the statute, but the appellant sought to prove that interest had been paid by Pierre Gray on both of said notes within the period of the statute of limitation.
The first question presented by the...
To continue reading
Request your trial