Humphrey v. City National Bank of Evansville

• Decision Date: 18 March 1921
• Docket Number: 23,928
• Citation: 130 N.E. 273,190 Ind. 293
• Parties: Humphrey v. City National Bank of Evansville et al
• Court: Indiana Supreme Court

130 N.E. 273

190 Ind. 293

Humphrey v. City National Bank of Evansville et al

No. 23,928

Supreme Court of Indiana

March 18, 1921

From Vanderburgh Superior Court; Fred M. Hostetter, Judge.

Action by Charles Humphrey against the City National Bank of Evansville and another. From a judgment for defendants plaintiff appeals. (Transferred from the Appellate Court under § 1394 Burns 1914, Acts 1901 p. 567.)

Reversed.

Joseph H. Iglehart and Eugene H. Iglehart, for appellant.

Daniel H. Ortmeyer, for appellees.

Ewbank J. Townsend, J., absent.

OPINION

Ewbank, J.

This was an action by appellant against the Cascade Packing Company, hereinafter called the appellee company, seeking to reach by attachment and garnishment certain money alleged to be in the hands of the City National Bank of Evansville, Indiana, hereinafter called the appellee bank.

On December 29, 1916, appellant filed his complaint in two paragraphs against the appellee company, each paragraph alleging in substance that appellant was doing business under the name and style of the Evansville Commerce Company; that on May 4, 1916, he entered into a contract in writing with the Anchor Fish Company, which was engaged in canning and selling salmon in the State of Washington; that the contract (as set out at length) was dated at Everett, Washington, and recited that the Anchor Fish Company had sold to Evansville Commerce Company certain salmon, at a price and on terms as stated, and that "goods are at risk of buyer from and after delivery to carrier," and that there had been a breach of the contract by said appellee whereby appellant was damaged, as stated.

The first and second paragraphs of complaint were the same, except that the contract set out in the first was for the purchase of 2,000 cases of "Chum Salmon," at seventy-five cents per dozen cans, and alleged a refusal to ship half of it, while the second paragraph set out a contract for the purchase of 1,000 cases of "pink salmon," at eighty cents per dozen, and alleged a refusal to ship any of it. Each paragraph also contained the following averment: "That subsequent to the 4th day of May, 1916, and prior to the commencement of this action the defendant (appellee), Cascade Packing Company, a corporation, for a valuable consideration became the owner of the contract hereinafter set out, and assumed the obligations by said contract imposed upon said Anchor Fish Company, and now is the owner of said contract and has assumed all of the obligations by said contract imposed upon said Anchor Fish Company, and in law occupies in relation to said contract the position originally assumed by said Anchor Fish Company at the time of the execution of said contract."

With this complaint appellant filed his own affidavit in attachment and garnishment, stating that the defendant was a foreign corporation. The sufficiency of this affidavit for the purpose stated is not questioned by the appellee. And the appellant also filed at the same time an undertaking by himself and sureties, conditioned that he "will prosecute his proceedings in garnishment in said action to effect, and will pay to said defendant all damages defendant may sustain if such proceedings shall be wrongful and oppressive." Upon this a general writ of attachment was issued, and was returned unexecuted, and a writ of garnishment, afterward quashed by the court, was issued to and served upon the appellee bank. The next day, upon presentation of the affidavit filed, as above stated, the court ordered that notice by publication be given to the appellee company, but the sufficiency of this publication being questioned, appellant filed his affidavit, stating that the appellee company was a foreign corporation and not a resident of the State of Indiana, but had property within the state, and that the object of the suit was to enforce plaintiff's demand by proceedings in attachment and garnishment. Upon this affidavit an order was made for notice by publication to the appellee company, proof of which publication was thereafter made, and at the same time a new summons in garnishment was issued and served on the appellee bank. A motion by the appellee bank to quash the second summons and return for the alleged reason that the written undertaking filed with the complaint was not conditioned to pay damages sustained by the garnishee was overruled, and the bank reserved an exception. The appellee bank then filed an answer in abatement, to which a demurrer was sustained, and the bank excepted. It then demurred to each of the first and second paragraphs of the complaint, and its demurrers were sustained on October 2, 1917, to which rulings appellant excepted. Seven weeks later, on November 26, 1917, appellant filed his third and fourth paragraphs of complaint. The third paragraph counted on the same alleged contract as the first paragraph, and was identical with it, except that the allegations above set out that the appellee company became the owner of the contract sued on, and assumed the obligations thereby imposed on the Anchor Fish Company, and in law occupied in relation to said contract the position assumed by said Anchor Fish Company at the time the contract was executed, were all eliminated, and an averment was substituted, as follows: "That subsequent to the 4th day of May, 1916, and prior to the commencement of this action, said Anchor Fish Company in the manner sanctioned and provided by law changed its corporate name to the name "Cascade Packing Company," and that said Anchor Fish Company and said Cascade Packing Company was at all times herein referred to and now is one and the same corporation, and any and all rights, duties and obligations of said Anchor Fish Company were at all times and now are the rights, duties and obligations of said Cascade Packing Company."

The fourth paragraph of complaint counted on the same alleged contract as the second paragraph, and was identical with it, except for the same difference that was made to exist between the third and first paragraphs, as above stated. The appellee bank filed an answer in abatement to the third and fourth paragraphs of complaint, alleging that it was only a garnishee defendant, and that after appellant's affidavit in garnishment was filed, and after notice by publication had been given to the principal defendant, as being a nonresident foreign corporation, demurrers were sustained to each of the first and second paragraphs of the complaint, and that upon subsequently filing his third and fourth paragraphs of complaint, the plaintiff did not file therewith or thereafter an affidavit stating the facts required by §§ 950, 966 Burns 1914, (§ 916 R. S. 1881; Acts 1897 p. 233) in cases of attachment and garnishment, or stating any facts at all; and asserting that thereby appellant had abandoned his proceeding in attachment and garnishment. To this answer in abatement the court sustained a demurrer, and the appellee bank excepted. It then filed a demurrer to each of the third and fourth paragraphs of complaint for the alleged reason that each paragraph did not state facts sufficient to constitute a cause of action, with a memorandum containing several specifications, of which the appellee bank has waived all but two by its failure to cite authorities or offer argument in support of them, but urges and relies on the following: (a) That neither paragraph avers that the appellant Charles A. Humphry, suing on a contract executed by him in the name of Evansville Commerce Company, is shown to have filed in the office of the clerk of the county in which his place of business or office is situated a certificate stating his full name and residence. (b) That appellant did not verify his third and fourth paragraphs of complaint, nor file an affidavit, at or after the time they were filed, stating the facts which §§ 950, 966 Burns 1914, supra, require to be shown by affidavit in case of attachment and garnishment, and therefore had abandoned his attachment.

The trial court sustained said demurrer to each of the third and fourth paragraphs of the complaint, and the appellant excepted. The appellee company, not having appeared, was thereupon defaulted, and appellant refusing to plead further, the court rendered a judgment "that the plaintiff take nothing by his suit, and that the said garnishee defendant, the City National Bank of Evansville, Indiana, recover of and from the plaintiff its costs," etc. A term appeal was duly perfected by appellant.

The appellant has assigned as errors the action of the trial court in sustaining the demurrers to each paragraph of his complaint. And the appellee bank has assigned as cross-errors (1) the overruling of its motion to quash the summons and return, (2) the sustaining of appellant's demurrer to its answer in abatement to the first and second paragraphs of the complaint, and (3) the sustaining of appellant's demurrer to its answer in abatement to the third and fourth paragraphs of the complaint.

The established rule of law is that where a plaintiff, after the court has sustained a demurrer to each paragraph of his complaint, files further paragraphs of complaint, they constitute an amended complaint, even though the plaintiff may give them new numbers, such as calling them paragraphs 3 and 4, where the ones to which the demurrer was sustained were denominated paragraphs 1 and 2, and that, by thus pleading further after a demurrer was sustained to the paragraphs of his original complaint, the plaintiff waived his exceptions to the ruling on such demurrer. Jouchert v. Johnson (1886), 108 Ind. 436 437, 9 N.E. 413; Scheiber v. United Tel. Co. (1899), 153 Ind. 609, 610, 55 N.E. 742; Harvey v. Hand (1911), 48 Ind.App. 392, 394, 95 N.E. 1020; Trisler v. Trisler (187...