Menzenberger v. American State Bank, Inc., 15101.

• Decision Date: 20 December 1935
• Docket Number: No. 15101.,15101.
• Parties: MENZENBERGER et al. v. AMERICAN STATE BANK, Inc., et al.
• Court: Indiana Appellate Court

101 Ind.App. 600

198 N.E. 819

MENZENBERGER et al.

v.AMERICAN STATE BANK, Inc., et al.

No. 15101.

Appellate Court of Indiana, in Banc.

Dec. 20, 1935.

Appeal from Marshall Circuit Court; Albert B. Chipman, Judge.

Action by the American State Bank, Inc., against Earl Menzenberger, Hariette Menzenberger, and Fred C. Meyer, in which defendant last named filed a cross-complaint. Judgment for plaintiff and cross-complainant, and defendants Menzenberger appeal.

Affirmed as to plaintiff, and reversed as to cross-complainant, with instructions.John W. Kitch and Don F. Kitch, both of Plymouth, for appellants.

William H. Wigton, of Ligonier, John A. Sloane and Everett E. Rasor, both of Warsaw, L. H. Dunten, of Ft. Wayne, and Gochenour & Graham, of Warsaw, for appellees.

WIECKING, Judge.

This was an action to foreclose a mortgage on certain real estate located in Kosciusko county, Ind., and a cross-complaint by the appellee Meyer to foreclose a mechanic's lien on the same property. The amended complaint was in two paragraphs, the first of which was the usual complaint in foreclosure, and the second paragraph sought to reform the mortgage on account of mistake by changing the description of the note from one bearing interest from date to one bearing interest from maturity. The cross-complaint sought to foreclose a mechanic's lien for iron grillwork and draperies in the house, and for the labor incident to installing them.

The appellants filed answers in five paragraphs to each paragraph of complaint and the cross-complaint; each set of answers being similar in form and purport. The first paragraph of answer is in general denial, the second paragraph alleges failure of consideration, the third paragraph partial failure of consideration, the fourth paragraph is based on an alleged agreement to extend time to the appellants in which to pay the note and mortgage, and the fifth is based upon an oral agreement to hold this action in abeyance. To these answers the plaintiff and cross-complainant each filed replies in three paragraphs; each set of replies being similar in character. The first paragraph of reply was in general denial, the second contained a plea in estoppel, and the third paragraph of reply a plea of waiver. The appellants filed a demurrer to each the second and third paragraph of reply of each of the appellees, which demurrers were overruled by the court. Subsequently the plaintiff filed a supplemental complaint alleging payment of certain taxes and asking foreclosure thereon. The appellants also filed a sixth paragraph of answer to the plaintiff's amended complaint alleging usury, and the plaintiff filed a reply in general denial. This closed the issues. A trial was had by the court without intervention of a jury, and judgment was entered by the court in favor of the plaintiff and the cross-complainant, foreclosing the mortgage and the mechanic's lien, making them of equal priority, and ordering sale of the real estate described in the complaint. The appellants seasonably filed a motion for new trial as to each appellee, which motions were overruled by the court.

The errors assigned here for reversal are:

(1) The court erred in overruling appellants' separate and several demurrer to the second paragraph of reply of appellee American State Bank, Inc.

(2) The court erred in overruling appellants' separate and several demurrer to the third paragraph of reply of appellee American State Bank, Inc.

(3) The court erred in overruling appellants' separate and several demurrer to appellee Fred C. Meyer's second paragraph of reply.

(4) The court erred in overruling appellants' separate and several demurrer to appellee Fred C. Meyer's third paragraph of reply.

(5) The court erred in overruling appellants' motion for a continuance.

(6) The court erred in overruling appellants' motion for a new trial as to appellee American State Bank, Inc.

(7) The court erred in overruling appellants' motion for a new trial as to appellee Fred C. Meyer.

[1] The appellants have failed to state any propositions or points or to cite any authorities in support of the alleged errors numbered 3, 4, or 5, and the transcript and appellants' brief both fail to set out the demurrer to the third paragraph of plaintiff's reply, the overruling of which is assigned as the second alleged error, and since they have failed to press such assigned errors, they will be deemed to have waived and abandoned them under rule 21, clauses 5 and 6, of the rules of this court.

The errors properly presented for consideration of this court are errors 1, 6, and 7, as set out above.

The second paragraph of plaintiff's reply to the second, third, fourth, and fifth paragraphs of answer to plaintiff's complaint, omitting the caption and signatures, is as follows: “For a second and further paragraph of reply to said First, Second, Third, Fourth and Fifth paragraphs of answer by the defendants, Earl Menzenberger and Hariette Menzenberger, plaintiff says that while said cause was pending said defendants fully recognized the validity of this complainant's lien and paid the sum of Four Thousand Ninety-Eight ($4,098.00) Dollars to apply upon said lien as a partial payment; that subsequently, to-wit: On the 17th day of October, 1932, said case had been set for trial for the third or fourth time, by the Judge of Kosciusko Circuit Court while said cause was pending in said court; that on said trial date, to-wit: October 17, 1932, the defendants, Earl Menzenberger and Hariette Menzenberger, acting by and through one of their attorneys of record, to-wit: Morrison A. Rockhill, and in the presence of said Earl Menzenberger, did agree with the plaintiff in this action and the cross-complainant that if plaintiff and cross-complainant would permit said cause to be taken out of the trial call at the September Term of said Kosciusko Circuit Court on said 17th day of October, 1932, and would permit said case to be reset for the 5th day of December, 1932, at the December Term of said court, said defendants would, in consideration of said continuance and resetting, interpose no defense whatever either to the complaint or the cross-complaint and would, if said defendants had not been able to make a loan and raise the money to pay the balance due the plaintiff and cross-complainant prior to said 5th day of December, 1932, on said date permit the plaintiff and this cross-complainant to have judgment on said 5th day of December, 1932, for the full amount of their respective claims; that the plaintiff, by attorneys,Solan and Rasor, and the cross-complainant, acting by and through one of his attorneys of record, one, Merl L. Gochenour, agreed to said extension and resetting and did accept the promise and agreement of said defendants as the consideration for said extension and resetting; that this plaintiff and cross-complainant duly ratified said agreement and permitted said cause to be reset for December 5, 1932; that on said 5th day of December, 1932, the said Menzenberger and Menzenberger sought further delay and by and through their said attorney represented to the Judge of Kosciusko Circuit Court and to this plaintiff and the cross-complainant and their attorneys that said defendants had a loan in process of consummation and in a few days would have the money to pay and would pay the plaintiff and this cross-complainant their respective demands in full; that said cause was again set for trial by the Judge of the Kosciusko Circuit Court on the 23rd day of February, 1933, and that before said trial date to-wit: on the 20th day of February, 1933, Brubaker and Rockhill, as attorneys of record for said defendants, Menzenberger and Menzenberger withdrew their appearance and Kitch and Kitch appeared for said Menzenberger and Menzenberger and filed an affidavit for change of venue from the county on behalf of said defendants, which affidavit resulted in the venue of said cause being changed to the Marshall Circuit Court; that by reason of the premises said defendants have completely estopped themselves from making any of the alleged defenses pleaded by said First, Second, Third, Fourth and Fifth Paragraphs of Answer and that Judgment should be rendered accordingly.”

The demurrer by the defendant to such paragraph of reply, omitting the caption and signatures, is as follows:

“Come now Earl Menzenberger and Hariette Menzenberger, defendants in the above entitled cause and demur to the second paragraph of reply by plaintiff to First, Second, Third, fourth and fifth paragraphs of answer by defendants Earl Menzenberger and Hariette Menzenberger, for the reason that said second paragraph of reply by plaintiff does not state facts sufficient to avoid said paragraphs of answer or any one of them.

“Memoranda.

“1. The said paragraph of reply apparently relies upon an estoppel and attempts to plead an estoppel against these defendants. The elements of such estoppel are not sufficiently set forth in the said paragraph of reply.

“2. The paragraph attempts to plead an estoppel by words and conduct against the defendants, Earl Menzenberger and Hariette Menzenberger, but the elements of an estoppel are lacking in that the said paragraph does not show any false representation concerning material facts. It does not show that any representation that was made was with knowledge of facts on the part of said defendants. Said paragraph does not show that the plaintiff Fred C. Meyer was ignorant of the truth of the matter. It does not show that any conduct was made with the intention on the part of the Menzenbergers that it should be acted upon. It does not show that any conduct or words set forth in said paragraph of reply was acted upon by the plaintiff to his damage.

“3. The said second paragraph of reply shows on its face that it contains merely a recital of certain facts connected with the trial and conduct of said cause long after the cross-complaint was filed and bears no relation whatever to any of...