Jones v. Bryan

• Decision Date: 17 June 1913
• Docket Number: No. 7,992.,7,992.
• Citation: 53 Ind.App. 550,102 N.E. 153
• Parties: JONES v. BRYAN et al.
• Court: Indiana Appellate Court

53 Ind.App. 550

102 N.E. 153

JONES

v.BRYAN et al.

No. 7,992.

Appellate Court of Indiana, Division No. 2.

June 17, 1913.

Appeal from Circuit Court, Henry County; Ed. Jackson, Judge.

Action by Lamont E. Jones against Martha Bryan and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Kittinger & Diven, of Anderson, and Barnard & Brown, of New Castle, for appellant. J. E. Beeler and Ellis & Ellison, all of Anderson, for appellees.

IBACH, J.

This was an action brought by appellant on a note executed by appellee Martha Bryan, and to foreclose a chattel mortgage on a piano. Trial by the court resulted in a judgment for appellee for costs.

[1][2] It is assigned as error that the court erred in refusing to sustain appellant's motion to strike out certain portions of appellee's answer. Under the rules of this court this error has been waived by failure to set out such motion and the ruling thereon in appellant's brief, but even if the court did err in its action on such motion, it would not constitute reversible error. Crawford v. Anderson, 129 Ind. 117, 28 N. E. 314;Rowe v. Major, 92 Ind. 206.

It is also urged that the court erred in overruling appellant's motion for new trial. Appellant's failure to incorporate this motion in its brief has been supplied by appellee. This motion was upon the grounds that the judgment of the court is contrary to law, that the judgment of the court is contrary to the evidence, and that the judgment of the court is not sustained by sufficient evidence.

[3] A new trial may be granted only upon the grounds permitted by statute. The statute (section 585, Burns 1908), does not permit the granting of a new trial upon the grounds assigned by appellant. Under the following authorities we are constrained to hold that appellant's motion did not challenge the correctness of the court's finding or decision, and therefore presented no question to the trial court, and was correctly overruled: Rosenzweig v. Frazer, 82 Ind. 342;Rodefer v. Fletcher, 89 Ind. 563;Felt v. East Chicago, etc., Co., 27 Ind. App. 494, 61 N. E. 744;Weaver v. Apple, 147 Ind. 304, 306, 46 N. E. 642.

[4] Error is also assigned in overruling the demurrer to the fourth paragraph of appellee Martha Bryan's answer. By a strict construction of the rules of this court appellant has also waived consideration of this error, for he has not set out in his brief either the answer sought to be tested, or a sufficient statement of its substance. However, we think the answer was good.

[5][6][7] The answer shows that the piano was the property of Martha Bryan, and that she made an affidavit that it was the property of her husband in order to enable him to borrow money with it as security. The husband made several payments upon various notes, but died owing, as appellant claimed, $74. Shortly after his death, in order to prevent her piano being taken to satisfy the mortgage, appellee executed a new note for $84, the balance on the old loan, and a new loan of $10. On this she paid $49; then ten months later gave a note for $71, the balance claimed by appellant to be due on the old note, and a new loan of $25. She avers an offer to pay $25 to appellant in full satisfaction of his claim, and a bringing of that sum into court for his use. The payments made by appellee's deceased husband and those made by appellee total more than the amount of the several loans and the legal rate of interest to the time of the trial.

Appellant claims that this answer is bad because it seeks to recoup usurious interest paid by appellee's deceased husband to appellant, and it is not directly averred that appellee was the heir or personal representative of her husband; only that she was his wife. So appellant urges that it does not appear that she was privy with him, and thus entitled to recoup usurious interest paid by him, but that she occupies the position of a mere volunteer who assumed the debt, and therefore is not entitled to recoup usurious interest paid by her husband. By statute (section 7953, Burns 1908), a contract to pay usurious interest is void as to the excess over the legal rate of interest, and in action on a contract affected with usury, the excess over the legal rate may be recouped by the debtor. This same right exists at common law. Baum v. Thomas (1897) 150 Ind. 378, 50 N. E. 357, 65 Am. St. Rep. 368, and cases cited.

The rule is that the defense of usury is personal to the debtor or borrower, and his privies by law, blood, contract, or estate, and that...