McKeen v. A.T. Bowen & Co.

• Decision Date: 29 October 1914
• Docket Number: No. 21710.,21710.
• Court: Indiana Supreme Court
• Parties: McKEEN v. A. T. BOWEN & CO. et al.

182 Ind. 333

106 N.E. 529

McKEEN

v.A. T. BOWEN & CO. et al.

No. 21710.

Supreme Court of Indiana.

Oct. 29, 1914.

Appeal from Circuit Court, Madison County; Cassius M. Greenlee, Judge.

Action by A. T. Bowen & Co. against William Riley McKeen and others. From a judgment for plaintiff and an order denying a new trial, the named defendant appeals. Affirmed.

John G. Williams, of Indianapolis, for appellant. Wm. C. Smith and Boyd & Julien, all of Delphi, and Chipman & Hendee, of Anderson, for appellees.

MORRIS, J.

Suit to recover on a promissory note for $10,000, dated April 5, 1906, payable to A. T. Bowen & Co., plaintiffs, purporting to have been executed by the Muncie Gas Light & Fuel Company and indorsed by Charles E. Ruger, Robert H. Adams, W. R. McKeen, Charles A. Meeker, J. F. Marks, N. W. Box, and Hiram Kerlin.

The original defendants were the Muncie Gas Light & Fuel Company, Ruger, as receiver of the Muncie Gas Light & Fuel Company, and the above-mentioned indorsers, except Kerlin, who had died, and whose executor was made a party defendant. Before the issues were closed, Marks and Meeker died, and the administrators of their estates were made defendants, and after trial, but before finding, upon the suggestion of the death of Robert H. Adams, the administrator of his estate was substituted as defendant. Before trial the case was dismissed as to Ruger, as receiver of the Muncie Gas Light & Fuel Company.

As the result of numerous pleadings, the issues that were formed and tried were as follows: (a) As between the plaintiffs and the defendants, there were general denials of all of the allegations of the complaint, answers of no consideration for the note sued on, and a denial under oath by the Muncie Gas Light & Fuel Company of its execution; (b) issues of suretyship arising upon the cross-complaint of McKeen, setting up that he was surety for all his codefendants; (c) issues of suretyship presented by the cross-complaint of Kerlin, executor, setting up that his decedent, Hiram Kerlin, was surety for all the other indorsers on the note, and that McKeen had agreed to pay the note in suit; (d) issues of suretyship arising upon the several cross-complaints against McKeen, of Marks, administrator, Meeker, administrator, Box, and Adams, wherein it was claimed by each of those parties that McKeen should be adjudged principal because for a valuable consideration, he had agreed to pay the note sued on, and in behalf of Marks, administrator, that McKeen should be adjudged principal because he had agreed with Marks to protect him against liability for loss on account of his indorsement of the note sued on. The case was tried by the judge, without a jury, and the issues were decided in favor of the plaintiffs against all of the defendants, and against McKeen on the cross-complaints of his several codefendants, and in favor of Kerlin, executor, on his cross-complaint. Judgment was rendered in favor of the plaintiffs against all the defendants, and it was adjudged that execution should be levied against the property of the defendants in the following order: First, Wm. R....