Jones v. Moise, 15472.

• Decision Date: 03 May 1937
• Docket Number: No. 15472.,15472.
• Citation: 8 N.E.2d 99,104 Ind.App. 390
• Parties: JONES v. MOISE et al.
• Court: Indiana Appellate Court

104 Ind.App. 390

8 N.E.2d 99

JONES

v.MOISE et al.

No. 15472.

Appellate Court of Indiana, in Banc.

May 3, 1937.

Appeal from Johnson Circuit Court; Geo. I. White, Special Judge.

Action by William Lloyd Moise and others against Harry G. Jones. From a judgment for plaintiffs, defendant appeals.

Affirmed.Mote, Mantel & Loughry, of Indianapolis, and Featherngill & Drybread, of Franklin, for appellant.

Mark H. Miller and Urban K. Wilde, Jr., both of Indianapolis, Geo. B. Staff, of Franklin, and Shearman & Sterling, of New York City, for appellees.

BRIDWELL, Presiding Judge.

Appellees brought this action against appellant to recover judgment for an amount claimed to be due on a promissory note which appellant had executed to the National City Company of New York, and which had been transferred by said company to the appellees. The complaint, in addition to alleging the execution and assignment of said note and that the same was due and unpaid except for a credit of $72.00, averred that appellant pledged with the payee thereof eight shares of the capital stock of the National City Bank of New York as collateral security for the payment of such note, which pledge of stock was also assigned to appellees. The prayer of the complaint demanded judgment on the note in the sum of $3,500; that the equity of appellant in said shares of stock so pledged, be foreclosed, the shares sold, and the proceeds applied to plaintiffs' (appellees) debt and costs, the balance, if any, to be paid into court to be disposed of according to law, and a deficiency judgment for any balance due plaintiffs in the event of the stock failing to sell for a sum sufficient to pay plaintiffs' debt and costs. In the closing of issues many pleadings were filed including nine separate paragraphs of answer to the complaint either filed or offered to be filed by the appellant. Interrogatories propounded by appellees for the appellant to answer and filed during the time while the issues were being formed, were answered by appellant under an order of court. To some of the paragraphs of answer, among them the third paragraph, a demurrer was filed and sustained. To other paragraphs, including the fourth, seventh, and eighth, a separate motion to strike out was filed, and each of said motions was sustained. A reply in general denial to the ninth paragraph of answer closed the issues. Appellant requested a trial by jury, but this request was denied, and, thereafter, the cause was tried by the court, and the court having been requested so to do, made and filed its special finding of facts, and stated conclusions of law thereon. The decision was in favor of appellees, and appellant excepted to each of said conclusions of law. Judgment in accordance with the finding and conclusions for the sum of $3,535 followed. In due course appellant filed his motion for a new trial, which was overruled. Appellant at the proper time excepted to each of the court's adverse rulings. This appeal was perfected, ten separate specifications of error being stated in the assignment of errors filed in this court.

The sustaining of the demurrer to the third paragraph of answer; the sustaining of the separate motions to strike out each the fourth, seventh, and eighth paragraphs of answer; and the overruling of the motion for a new trial, are the only claimed errors mentioned by appellant in his briefs under the heading designated by him as “Points and Authorities.”

Appellees in their briefs contend that appellant is not entitled to have this court consider and determine whether the trial court committed error in any ruling which is asserted to be...