Johnson Cnty. Sav. Bank v. Kramer

Decision Date24 November 1908
Docket NumberNo. 6,246.,6,246.
Citation86 N.E. 84,42 Ind.App. 548
PartiesJOHNSON COUNTY SAVINGS BANK v. KRAMER.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, La Porte County; Harry B. Tuthill, Judge.

Action by the Johnson County Savings Bank against Leonard G. Kramer. From a judgment for defendant, plaintiff appeals. Reversed, with instructions.

M. R. Sutherland and R. N. Smith, for appellant. J. F. Gallaher, for appellee.

MYERS, J.

Appellant brought this action against appellee, alleging in substance that a partnership composed of Milbert F. Price and Lewis E. Lyon, doing business at Iowa City, Iowa, under the firm name of the Puritan Manufacturing Company, on April 15, 1904, at its place of business in said Iowa City drew in due course its draft or bill of exchange, sued on in this action, upon the appellee, as well as three other drafts or bills of exchange, each for $95, due in three, six, and nine months after date, and forwarded them to the appellee for his acceptance in writing; that the appellee received said drafts or bills of exchange and accepted them in writing by signing his name on the face of each, L. G. Kramer,” and delivered them at said Iowa City to said Puritan Manufacturing Company, which in due course, May 21, 1904, in good faith and for a valuable consideration to it paid by the appellant, indorsed and delivered said drafts or bills of exchange to the appellant, “who is now and has been the owner of the draft or bill of exchange sued upon in this action ever since the time of said indorsement.” A copy of said draft or bill of exchange, and the acceptance of the appellee written upon the face thereof, and the indorsement of the Puritan Manufacturing Company to the appellant on the back thereof, were exhibited with the complaint as follows:

“Puritan Mfg. Company. No.-.

Iowa City, Ia., April 15th, 1904.

“Twelve months after date pay to Puritan Mfg. Company, or order, Ninety-five Dollars, $95.00. Value received and charge to account of Puritan Mfg. Company,

“Per M.

“To L. G. Kramer, Michigan City, Ind.”

“Customer's acceptance: Accepted, L. G. Kramer (Customer's Signature).”

“Pay Johnson Co. Savings Bank, Iowa City, Iowa. Puritan Mfg. Co.

“Pay any Bank or Banker or order,

Johnson County Savings Bank,

Iowa City, Iowa.

William A. Fry, Cashier.”

The complaint further showed that when the draft or bill of exchange here in question became due and payable it was presented to the appellee for payment through the first National Bank of Michigan City, Ind., and payment was refused by the appellee. The complaint sets forth certain alleged statutes of Iowa, and contains averments concerning the same; that the instrument sued upon is long past due and wholly unpaid. The appellee answered in three paragraphs, a general denial, and two affirmative paragraphs. A demurrer to the second and third paragraphs of answer was overruled. This demurrer, in so far as it is material, was as follows: “Now comes the planitiff in the above-entitled cause and demurs, separately and severally, to the second and third paragraphs of defendant's answer, on the following grounds, first, that neither of said paragraphs states facts sufficient,” etc. The order book entry showing the court's action and the appellant's exception is as follows: “Which demurrer is by the court overruled, to which ruling of the court said plaintiff by counsel excepts.” It is assigned here that “the court erred in overruling the demurrer to the second and third paragraphs of the defendant's answer to the amended complaint.” It is contended that no question is presented by this assignment.

The demurrer is addressed to the paragraphs of answer separately and severally. The record shows that the court overruled the demurrer without referring to the separate paragraphs, and that the exception of the appellant to this action of the court was likewise general. The assignment of error is not addressed to the action of the court with reference to the paragraphs separately, but is addressed generally to the overruling of the demurrer.

Certain cases cited by the appellee have been overruled, and it is said that such a general exception to such a general ruling upon a demurrer addressed to the paragraphs of a pleading separately is a sufficient exception as to such ruling upon each of the paragraphs separately considered. Whitesell v. Strickler, 167 Ind. 602, 78 N. E. 845, 119 Am. St. Rep. 524;City of Decatur v. McKean, 167 Ind. 249, 78 N. E. 982;Bessler v. Laughlin, 168 Ind. 38, 79 N. E. 1033;Bedford Quarries Co. v. Bough, 168 Ind. 671, 80 N. E. 529, 14 L. R. A. (N. S.) 418. While the ruling upon the several paragraphs might have been assigned separately in this court, yet under the recognized practice the assignment made in this case is allowable, though it will be necessary for the upholding of that assignment to determine that both paragraphs embraced in the demurrer were insufficient. Black v. Thompson, 136 Ind. 611, 36 N. E. 643;Moore v. Morris, 142 Ind. 354, 41 N. E. 796;Ketcham v. Barbour, 102 Ind. 576, 26 N. E. 127;Saunders v. Montgomery, 143 Ind. 185, 41 N. E. 453.

In the second paragraph of answer it was alleged in substance that the draft sued on was accepted by the appellee at Michigan City, Ind.; that it was drawn for the payment of certain goods sold by the Puritan Manufacturing Company to appellee under a written contract exhibited with the answer; that certain representations were made as to said goods; that appellee purchased...

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4 cases
  • Brier v. Mankey
    • United States
    • Indiana Appellate Court
    • January 25, 1911
    ...v. Templin, 42 Ind. App. 151, 85 N. E. 121;United States Cement Co. v. Koch, 42 Ind. App. 251, 85 N. E. 490;Johnson County Sav. Bank v. Kramer, 42 Ind. App. 548, 86 N. E. 84. Appellee has presented us with a brief in support of the ruling of the court as to the first paragraph of the compla......
  • Brier v. Mankey
    • United States
    • Indiana Appellate Court
    • January 25, 1911
    ... ... v. Koch (1908), 42 Ind.App. 251, 85 ... N.E. 490; Johnson County Sav. Bank v ... Kramer (1908), 42 Ind.App. 548, 86 ... ...
  • Columbus Street Railway & Light Co. v. City of Columbus
    • United States
    • Indiana Appellate Court
    • November 24, 1908
  • Columbus St. Ry. & Light Co. v. City of Columbus
    • United States
    • Indiana Appellate Court
    • November 24, 1908

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