Prescott v. Haughey

• Decision Date: 29 November 1898
• Citation: 51 N.E. 1051,152 Ind. 517
• Parties: PRESCOTT et al. v. HAUGHEY et al.
• Court: Indiana Supreme Court

152 Ind. 517

51 N.E. 1051

PRESCOTT et al.

v.HAUGHEY et al.¹

Supreme Court of Indiana.

Nov. 29, 1898.

Appeal from superior court, Marion county; J. L. McMasters, Judge.

Action by William B. Prescott and another against Theodore P. Haughey and others. Judgment for defendants, and plaintiffs moved for a new trial, and from an order overruling the motion they appeal. Affirmed.

W. V. Rooker, for appellants. Hawkins & Smith, Ferdinand Winter, and Baker & Daniels, for appellees.

JORDAN, J.

This action was instituted in October, 1893, and prosecuted in the lower court, by appellants, William B. Prescott and Abner G. Wines, to recover a money judgment against the defendants, appellees here, namely, Theodore P. Haughey, Charles F. Meyer, Robert B. F. Pierce, Harvey Satterwhite, and Schuyler Colfax, as the alleged directors of the Indianapolis National Bank, a banking institution organized under the laws of the United States, and situated and doing business in the city of Indianapolis. This bank failed and closed its doors in July, 1893, and subsequently was placed in the hands of a receiver. Appellants alleged in their complaint that, prior to the time of the failure of the bank, they were depositors of money therein, and purchasers of bills of exchange from said bank, which bills were returned protested, and not paid; and the gist of the complaint is that said defendants, as the directors of the bank, were guilty of fraud in making and publishing in certain newspapers, from time to time, prior to the failure of the institution, false reports in regard to its solvency, and the security and character of its assets, etc., which reports came to the knowledge of the plaintiffs, who, relying on the same as true, were induced to become depositors in the bank of a large amount of money, and patrons of the institution in the purchase of exchange, as heretofore mentioned. The falsity of these reports, and the deceit practiced thereby, and the damages sustained by the plaintiffs, are averred, and, on account of the alleged fraud or deceit imputed to the defendants, the plaintiffs sue them, and demand judgment against all. Appellees separately answered the complaint by a general denial of all of its material allegations, and a trial by a jury resulted in the latter, by the direction of the court, returning a verdict in favor of all of the appellees. Appellants jointly applied for a new trial, and assigned 129 reasons in support of the motion, among which it is stated that the verdict is contrary to the evidence and is not sustained thereby. This motion the court denied, and appellants excepted, and the error, and the only one, assigned in this appeal, is predicated upon the action of the court in overruling the motion.

The application or motion for a new trial which appellants presented to the trial court was not only joint as to them, but it was so framed as to be in its nature or character a joint and general motion as to all the defendants, and the court thereby was requested to vacate the verdict, and grant a new trial, upon the issues as to all the defendants; or, in other words, appellants so formulated this motion as to place themselves thereunder in the attitude of demanding a re-examination upon all the issues involved in the case, and the grounds assigned therefor were made to apply to the defendants en masse, and the theory thereof was that the verdict was incompatible with the evidence as to all, and that the alleged erroneous rulings of the court were prejudicial to both of the moving parties, and favorable alike to all the defendants, and upon this theory, and this alone, appellants, in effect, insisted that the motion be sustained.

We have so fully referred to and set forth the character or theory of the application presented for a new trial, and the attitude in which appellants placed themselves thereby, for the reason that, at the very threshold of the consideration of the questions which they seek to present, we are confronted with the earnest contention of counsel for appellees that, inasmuch as the motion is not only joint as to the movers, but also a joint and general one as to all of the five defendants, against whom it is directed, therefore it must be well taken as against all, else the alleged error, that the court erred in overruling it, can in no respect be available. It is insisted by appellees that none of the reasons assigned in the motion, under the facts, will entitle appellants to a new trial as to the appellee Colfax, for the reason that there is an entire absence of any evidence offered or given upon the trial which even tends to establish, as against him, any liability. This contention of counsel we find to be fully supported by the record.

Appellants, on the trial, endeavored to sustain the issues or charge of fraud imputed by them in their complaint to the appellees by the introduction of reports made to the comptroller of the currency by the bank mentioned, as required by the statutes of the United States relating to national banks. These reports, in each particular instance, appear to have been attested, as exacted by the law authorizing them, by the signatures of at...