Leedy v. Capital National Bank

• Decision Date: 06 April 1905
• Docket Number: 5,046
• Citation: 73 N.E. 1000,35 Ind.App. 247
• Parties: LEEDY ET AL. v. CAPITAL NATIONAL BANK
• Court: Indiana Appellate Court

73 N.E. 1000

35 Ind.App. 247

LEEDY ET AL. v. CAPITAL NATIONAL BANK

No. 5,046

Court of Appeals of Indiana

April 6, 1905

From Wabash Circuit Court; H. B. Shively, Judge.

Action by the Capital National Bank of Indianapolis against Samuel J. Leedy and others. From a judgment for plaintiff defendants appeal.

Affirmed.

M. B Cobb, for appellants.

Watkins & Morgan, for appellee.

OPINION

ROBINSON P. J.

On September 7, 1900, the firm of Samuel J. Leedy & Co. was composed of Samuel J. Leedy and Jennie Purviance, and on that day the firm and John Leedy executed to James M. Key their promissory note for $ 300 due in sixty days, with interest, and payable at the Commercial Bank, Matthews, Indiana. On October 8, 1900, Key assigned, by indorsement, in due course of business, and delivered to appellee, as a part of its collateral security for the payment of a loan of $ 1,000 made on that date by appellee to Key, this note, and such assignment and delivery were made in the due course of business and for a valuable consideration. The note is past due. The interest was paid to September 7, 1901, but no part of the principal has been paid. After the note was assigned to appellee, as collateral security, it has been held continuously by it ever since as such. The debt to appellee, secured in part by the note, has never been paid, nor has any part thereof, but remains due and unpaid in the sum of more than $ 1,000. Key is wholly insolvent. No interest on the note was paid directly to appellee, but the interest was paid by Samuel J. Leedy & Co. to Key. When such interest was paid Key did not have the note, and no inquiry was made by appellants, when the interest was paid, as to where the note was. Appellee made the indorsements of payments of interest at the request of Key. Upon the foregoing finding of facts the court stated conclusions of law in appellee's favor--that it should recover on the note a named sum, and should recover costs.

1. The first error assigned questions the action of the court in overruling appellants' motion for a new trial, and the only question argued is the sufficiency of the evidence. But there is evidence to sustain the court's findings, and, while it is conflicting upon some matters, we can not weigh it to determine where the preponderance lies.

2. Appellants made a motion to change one of the findings by striking out a part of it and also to find additional facts, which motion was overruled. The second error assigned is predicated upon this ruling. A motion to modify or change a special finding or to make additional findings is not recognized by the code, and it has been held that it is properly overruled, rejected or stricken out. Allen v. Hollingshead (1900), 155 Ind. 178, 57 N.E. 917; Windfall Nat. Gas, etc., Co. v. Terwilliger (1899), 152 Ind. 364, 53 N.E. 284; Sharp v. Malia (1890), 124 Ind. 407, 25 N.E. 9; Bunch v. Hart (1894), 138 Ind. 1, 37 N.E. 537; Tewksbury v. Howard (1894), 138 Ind. 103, 37 N.E. 355; Smith v. Barber (1899), 153 Ind. 322, 53 N.E. 1014.

3. The third and fourth errors assigned, that "the facts as found by the court are contrary to law," and "the facts as found by the court are not supported by sufficient evidence and are contrary to law," present nothing for review. Matters which are causes for a new trial can not be assigned as independent errors. Zimmerman v. Gaumer (1899), 152 Ind. 552, 53 N.E. 829; Hedrick v. Hall (1900), 155 Ind. 371, 58 N.E. 257; Lewis v. State (1895), 142 Ind. 30, 41 N.E. 310; Pfau v. State, ex rel. (1897), 148 Ind. 539, 47 N.E. 927; Hunt v. Listenberger (1896), 14 Ind.App. 320, 42 N.E. 240.

4. It appears from the record that the case was tried at the September term, 1902. Afterwards, "at a regular term of" court, begun and held "on the second Monday and 12th day of January, 1903, * * * when, on the fifty-second judicial day of said term--the same being March 12, 1903 --the following proceedings were had, to wit: Capital National Bank v. S. J. Leedy et al. From Huntington county. Come now the parties by their respective attorneys and the special findings of facts and conclusions of law thereon by the court, and heretofore filed herein February 23, 1903, are now produced in open court in the following words." This is followed by the finding of facts and conclusions of law. "And defendants now file motion to amend the finding of facts," which is followed by the motion. Immediately following this motion is, "Also filed exceptions to conclusion of law in these words: [Giving title of cause.] Come now the defendants, and severally and separately except to conclusion of law number one, as found by the court on the facts as found by the court and the evidence in said cause. And now come the defendants, and except severally to conclusion of law number two as found by the court." It thus appears that the finding and conclusions of law thereon were filed February 23, 1903. It does not appear that any exception was taken that day,...