Krieg v. Bank

• Decision Date: 13 January 1916
• Docket Number: No. 8739.,8739.
• Citation: 67 Ind.App. 677,111 N.E. 31
• Parties: KRIEG et al. v. PALMER NAT. BANK.
• Court: Indiana Appellate Court

67 Ind.App. 677

111 N.E. 31

KRIEG et al.

v.PALMER NAT. BANK.

No. 8739.

Appellate Court of Indiana, Division No. 1.

Jan. 13, 1916.

Appeal from Circuit Court, Wabash County; N. N. Antrim, Special Judge.

Action by the Palmer National Bank against George S. Krieg and another. From a judgment for plaintiff, defendants appeal. Affirmed.

See, also, 51 Ind. App. 34, 95 N. E. 613.

Lesh & Lesh, of Huntington, F. O. Switzer, of Wabash, Krieg & Sapp, of Huntington, and W. A. Ketcham, of Indianapolis, for appellants. C. W. Watkins and C. A. Butler, both of Huntington, for appellee.

FELT, P. J.

This is the second appeal in this case. 51 Ind. App. 34, 95 N. E. 613. The statement of the case in the former opinion is relied on as far as applicable to avoid repetition. Following the reversal of the judgment on the former appeal, the case was remanded to the lower court, where rulings were entered in conformity to the mandate of this court.

An amended reply in three paragraphs by the Palmer National Bank was filed to the second, third, and fourth paragraphs of appellantKrieg's answer to the complaint. Appellee also filed an amended answer in three paragraphs to the cross-complaint of appellant Krieg, of which the third was a general denial. Appellant Krieg filed a reply in four paragraphs to the first paragraph of appellee's amended answer to the cross-complaint, and also filed a reply in four paragraphs addressed to the second paragraph of appellee's amended answer to the cross-complaint. The complaint and answers thereto and the cross-complaint are the same as on the former appeal. Demurrers by appellant Krieg for insufficiency of the facts alleged were overruled to the first and second paragraphs of the amended replies addressed to the second, third, and fourth paragraphs of appellant Krieg's answer to the complaint. The court also overruled appellant Krieg's separate demurrers to the first and second paragraphs of amended answer addressed to his cross-complaint. Appellee demurs separately to each the second, third, and fourth paragraphs of reply to the first paragraph of amended answer to the cross-complaint, which demurrer was sustained. Likewise the demurrer to the second, third, and fourth paragraphs of reply to the second paragraph of answer to the amended cross-complaint was sustained.

Separate errors are assigned by each of the appellants. Appellant Krieg assigns: (1) The overruling of his motion for new trial; (2) the overruling of his motion for judgment on the answers to the interrogatories; (3) overruling his demurrer separately and severally to the first and second paragraphs of appellee's amended reply to the second, third, and fourth paragraphs of his answer; (4) overruling his demurrer separately and severally to the first and second paragraphs of appellee's amended answer to his cross-complaint; (5) the sustaining of appellee's demurrer to the second, third, and fourth paragraphs of reply to the amended answer to the first and second paragraphs of the cross-complaint; (6) the sustaining of the demurrer of appellee to the second, third, and fourth paragraphs of reply to the second, third, and fourth paragraphs of reply to the second paragraph of amended answer to the first and second paragraphs of the cross-complaint; (7) the overruling of his demurrer to the first paragraph of appellee's amended reply to the second, third, and fourth paragraphs of his answer; (8) overruling his demurrer to the second paragraph of appellee's amended reply to the second, third, and fourth paragraphs of his answer; (9) overruling his demurrer to the first paragraph of appellee's amended answer to his cross-complaint; (10) overruling his demurrer to the second paragraph of appellee's amended answer to his cross-complaint. Appellant Huntington County Bank assigns as error the overruling of its motion for a new trial and its motion for judgment on the answers to the interrogatories.

The answer of appellee to the cross-complaint was in three paragraphs, of the third was a general denial, and the first and second special answers. To each of the paragraphs of special answers there was filed a reply in four paragraphs, the first of which is a general denial.

[1] The fifth assignment of errors presents no question, for the reason that it seeks to question the sustaining of the demurrer to all the special replies to all of the special answers to the cross-complaint jointly, while the record shows no such rulings, but, instead, shows separate and several rulings of the court in sustaining separate demurrers to the second, third, and fourth paragraphs of reply to each of the first and second paragraphs of reply to each of the first and second paragraphs of answer to the amended cross-complaint.

[2] Furthermore, the sixth assignment of errors presents no question, for the reason that the demurrer which is alleged to have been sustained is not in the record.

[3] The decision on the former appeal is the law of the case as to all questions presented and decided, and the opinion holds the case is controlled by the laws of Indiana, and not by the laws of Illinois, since Price, who indorsed the certificate in Illinois, is not a party to the suit.

[4] It is contended, however, that inasmuch as the mandate directed the overruling of the demurrer to the second paragraph of Krieg's reply to the fourth paragraph of appellee's answer to the cross-complaint, the opinion must be construed to hold that Krieg may invoke the laws of Illinois in aid of his defense. We do not understand the ruling to be based upon that ground, but, if there is any ambiguity in the opinion or ground for appellant's contention, it appears from the record that appellant Krieg has not been harmed; for he was given the benefit of such construction and permitted to plead and offer in evidence the laws of Illinois without objection, and to fully try the issue on that theory, though it resulted in a finding against him. Turpie v. Lowe, 158 Ind. 314-318, 62 N. E. 484, 92 Am. St. Rep. 310. Furthermore, as above indicated, the question is not presented by the assignment of errors, for the reasons already stated in regard to the fifth and sixth specifications of alleged error. The assignments of error question the correctness of the trial court's action in overruling the separate demurrers to the first and second paragraphs of appellee's amended reply to the second, third, and fourth paragraphs of Krieg's answer to the complaint and in overruling the separate demurrers to the first and second paragraphs of appellee's amended answer to the cross-complaint of appellant Krieg.

Appellee's amended first paragraph of reply to each the second, third, and fourth paragraphs of Krieg's answer alleges, in substance, that appellee purchased the certificate of deposit sued on in the usual course of business in Danville, Ill., on March , 1907, from James W. Price, who then had the same in his possession, claiming to own the certificate; that he then sold it to appellee as his property; that said Price indorsed and wrote his name across the back thereof, and then and there delivered it to appellee, for which it then and there gave him the sum of $4,250 in currency, which he accepted; that appellant Krieg gave appellee no notice and did not make known his title or interest in and to said certificate, and appellee did not know nor have knowledge nor notice that he claimed any interest therein, and did not know of any fraud in procuring the certificate from Krieg or the Huntington County Bank; that said Krieg had at some previous time to appellee unknown, at Huntington, Ind., written his name across the back of said certificate and delivered the same to said Price; that Krieg at said time knew his rights as to said certificate and that by his indorsement without restriction and delivery to said Price he invested him with the apparent legal title and ownership thereof; that, if there existed any defense to the payment of said certificate, Krieg did not disclose or make it known to appellee; that thereby appellee was led to purchase said certificate, and did purchase it, and paid for it the sum of $4,250 in currency, believing from said unrestricted indorsement and the possession of the certificate by Price that he was the owner thereof; that appellee relied wholly upon said unrestricted indorsement and the possession aforesaid; that by reason of such unrestricted indorsement and delivery, and by reason of appellee's reliance on the apparent ownership of Price, appellants are estopped from asserting any claim in or to said certificate as against appellee or from asserting any fraud or illegality in the procurement thereof, and are thereby estopped from setting up fraud or want or failure of consideration.

The second paragraph of amended reply to the second, third, and fourth paragraphs of answer of appellant Krieg in substance alleges that appellee purchased said certificate of deposit at its usual place of business at Danville, state of Illinois, in good faith, in the usual course of business, without notice or knowledge of any defects therein, or of any fraud or illegality in the procurement thereof, before the certificate was due, and paid therefor to said Price, the holder thereof, the sum of $4,250 in currency.

The averments of the first paragraph of appellee's answer to the amended cross-complaint are, in substance, the same as the averments of the amended first paragraph of reply above set out. The averments of the second paragraph of amended answer to the first and second paragraphs of the cross-complaint are, in substance, the same as those of the second paragraph of amended reply above set out.

The vital and controlling question in the controversy between appellee and appellant Krieg depends upon the sufficiency of the plea of estoppel presented by the amended first paragraph of reply to the second, third, and fourth paragraphs of Krieg's answer to the complaint and the...