Obermeyer v. Indianapolis Lien & Credit Co., 1168S181

Decision Date04 November 1968
Docket NumberNo. 1168S181,1168S181
Citation241 N.E.2d 252,251 Ind. 382
PartiesRichard E. OBERMEYER, Appellant, v. INDIANAPOLIS LIEN & CREDIT COMPANY, Inc., Appellee.
CourtIndiana Supreme Court

David H. Williams, Noel, Noel & Williams, Kokomo, for appellant.

George H. Doane, Jr., Yockey & Yockey, Indianapolis, for appellee.

PER CURIAM.

This matter is before the court on a petition to transfer from the Appellate Court wherein the appellant below requested this court to set aside and annul judgment of the Appellate Court in Obermeyer v. Indianapolis Lien & Credit Company, Inc. (1968) 12 Ind.Dec. 483, 232 N.E.2d 895.

This cause was commenced in the Municipal Court of Marion County, Room 1, by appellee filing a complaint on an open account. Defendants below were appellant, and Blue & White Service, Inc., appellee, was the assignee, with recourse, of defendants Blue & White Service, Inc., claim against appellant.

The issues were formed by the complaint, appellant's plea in abatement, and appellee's demurrer thereto.

Blue & White Service, Inc., was a corporation with its principal place of business in Marion County. The appellant, Richard E. Obermeyer, was a resident of Howard County.

The record, as summarized by appellant, shows the following:

'Appellee's complaint alleged it to be a corporation with its principal office and place of business in Indianapolis, Indiana. In addition, it alleged that appellant purchased from Blue certain merchandise upon open account; that Blue executed an assignment with recourse of this account to appellee; and Exhibit 'A' thereto stated that the general office of Blue is in Indianapolis.

'Appellant entered his special appearance questioning the jurisdiction of the court over his person and the venue of the cause of action. Thereafter, he entered his answer in abatement alleging his prior and continued residence in Howard County, together with his address therein; his status as the only party immediately liable to judgment and execution; and the venue provisions of Indiana in such cases, which prescribe a forum other than the one chosen by appellee.

'Appellee demurred on the ground that the appellant's answer in abatement did not state facts sufficient to abate the cause of action stated in his complaint.'

On March 22, 1967, the trial court sustained appellee's demurrer and the appellant refused to plead over. The trial court then entered judgment for the appellee for $1,053.22 principal, and $31.58 interest, and costs.

Burns' Indiana Statutes, § 2--707 (1966 Supp.) provides in part that:

'* * * any action brought by the assignee of a claim arising out of a contract, whether assigned in writing or by delivery, shall be commenced in the county where one or more of the parties immediately liable to judgment and execution resides, and not elsewhere.'

Pursuant to the provisions of this statute, the defendants are required to be jointly liable upon the cause of action in order to authorize an action in the county where only one defendant resides. Moore-Mansfield Construction Co. v. Marion Bluffton & Eastern Traction Co. et al. (1913), 52 Ind.App. 548, 101 N.E. 15.

In the case at bar the appellant and Blue & White Service, Inc. are not jointly liable on the account, they are not even liable under the same agreement. The liability of Blue & White Service, Inc. to appellee, so far as is herein relevant, is predicated upon a separate written...

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2 cases
  • Adult Group Properties, Ltd. v. Imler
    • United States
    • Indiana Appellate Court
    • March 24, 1987
    ...in pari materia and should be construed together, especially when they are approved on the same day. Obermeyer v. Indianapolis Lien & Credit Co. (1968), 251 Ind. 382, 241 N.E.2d 252, 254. All statutes relating to the same subject matter should be so construed with reference to each other th......
  • State v. Bigbee, 971S281
    • United States
    • Indiana Supreme Court
    • February 23, 1973
    ...and was passed at the same time, must be read in conjunction with this change in definition. See Obermeyer v. Indianapolis Lien & Credit Co. (1968), 251 Ind. 382, 385, 241 N.E.2d 252. When viewed in such a light, its obvious purpose was to prohibit that activity deleted from the definition-......

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