Patton v. State Bank of Hardinsburg

• Decision Date: 01 June 1938
• Docket Number: 15747.
• Citation: 15 N.E.2d 106,105 Ind.App. 381
• Parties: PATTON et al. v. STATE BANK OF HARDINSBURG.
• Court: Indiana Appellate Court

15 N.E.2d 106

105 Ind.App. 381

PATTON et al. v. STATE BANK OF HARDINSBURG.

No. 15747.

Appellate Court of Indiana, in Banc.

June 1, 1938

Noble H. Wible, of Indianapolis, and Emmet C. Mitchell, of Salem for appellants.

Frank S. Houston, of Salem, for appellee.

CURTIS Presiding Judge.

The action herein in the trial court was upon a promissory note and to foreclose a mortgage upon certain real estate and a chattel mortgage upon certain personal property all in Washington County, Indiana, given to secure said note.

The appellee's complaint was in one paragraph and alleged that on the 21st day of October 1930, the appellants Charles S. Patton and Cecil R. McCoy became jointly and severally indebted to the appellee in the amount of $6,812.00 and executed their promissory note as evidence of such indebtedness and executed their joint mortgage upon certain real estate to secure payment of same; that for additional security the appellant Charles S. Patton executed a chattel mortgage to the appellee.

The complaint sought to foreclose both mortgages except as to certain real estate released from the security of the real estate mortgage and except certain personal property theretofore released from the lien of the chattel mortgage. To this complaint the appellant Cecil R. McCoy filed a general denial and three affirmative paragraphs of answer.

These affirmative pleadings sought to avoid liability as against this appellant upon the theory, first, that said real estate mortgage had been fully paid, satisfied and discharged.

Second. That said note and real estate mortgage were executed by this appellant in consideration of a debt owing to said appellee from one Ernest Patton and upon no other consideration as to this appellant.

Third. That the promissory note was executed entirely in consideration of a debt of other persons and that no part of said consideration for said note was due or owing by this appellant and that the mortgage therefore was without consideration and said appellant prayed that said mortgage be adjusted invalid and of no force or effect as against him.

To these affirmative paragraphs of answer the appellee replied in general denial. Each of the other appellants filed general denials and additional paragraphs of answer asserting payment of the note sued upon and release of the mortgages, and want of consideration. To these affirmative paragraphs of answer the appellee filed general denials.

Upon said issues the cause was submitted to the court for trial without the intervention of a jury.

The court upon the request of each of the appellants made a special finding of facts and stated conclusions of law thereon. These were in favor of the appellee. Personal judgment was rendered thereon against the appellants Charles S. Patton and Cecil R. McCoy in the sum of $7,282.53 with costs and that the real estate mortgage be foreclosed as against each and all of the appellants.

To each of the conclusions of law the appellants duly excepted. Upon making up the issues each appellant filed a motion to make the complaint more specific. These motions were overruled with exceptions.

Upon appeal to this court the errors relied upon for reversal are that the court erred in its rulings on the motions to make the complaint more specific and alleged error in each of the conclusions of law.

It is to be noted at the outset that the finding of facts is unchallenged and it will therefore be taken by this court to be full and correct.

The complaint was in the usual form upon a promissory note and for the foreclosure of a mortgage to secure the note. In addition to the general allegations, after describing the note and mortgages, each of which was made a part of the complaint, there are the following allegations: "That afterwards to wit, for valuable consideration the said plaintiff on the ----- day of -----19--- released their said mortgage on said real estate, so far as the same relates to that portion of said real estate which is thus described (here follows the description of one parcel of said real estate) and that afterwards to-wit, on the ----- day of ------, 19---, the plaintiff for valuable consideration released that portion of the personal property described in said chattel mortgage, which is thus described (here follows a...