Rothchild v. Citizens Loan Co. of Indianapolis, Inc.

• Decision Date: 02 July 1936
• Docket Number: 15312.
• Citation: 2 N.E.2d 810,102 Ind.App. 397
• Parties: ROTHCHILD v. CITIZENS LOAN CO. OF INDIANAPOLIS, Inc.
• Court: Indiana Appellate Court

2 N.E.2d 810

102 Ind.App. 397

ROTHCHILD v. CITIZENS LOAN CO. OF INDIANAPOLIS, Inc.

No. 15312.

Appellate Court of Indiana, in Banc.

July 2, 1936

Appeal from Municipal Court, Marion County; Wilfred Bradshaw, Judge.

Action by the Citizens Loan Company of Indianapolis, Inc., against Henry Rothchild and another. From the judgment, the named defendant appeals.

Affirmed.

Alexander Belle, S. C. Bodner, and S. A. Bortz, all of Indianapolis, for appellant.

S. K Ruick, of Indianapolis, for appellee.

WIECKING, Judge.

This was an action below by the Citizens Loan Company of Indianapolis, Inc., appellee, against Henry Rothchild appellant, and one Clyde C. Cartright on a promissory note in the sum of $93 with interest at the rate of 3 1/2 per cent per month as provided in the note.

The complaint was in one paragraph and alleged that the licensee engaged in the business of making petty loans pursuant to the small loan statute of the state, of Indiana then in force, being sections 9777-9781, Burns' Annotated Statutes 1926, sections 10465-10469, Baldwin's Ind.St.1934. The complaint also set out a copy of the note as an exhibit and alleged that the note was due and wholly unpaid.

To this complaint the appellant filed a demurrer with a memorandum attached thereto on two grounds: (1) That the court had no jurisdiction of the subject-matter of the action; (2) that the complaint did not state facts sufficient to constitute a cause of action.

The memorandum attached set out two specifications which were as follows:

" The plaintiff's complaint does not show the address of the plaintiff, and that license to transact a Petty Loan Business was issued at that address, nor does it show the consent of the Auditor of State in writing to such removal if it did move, had been secured.

" Complaint asks for attorney's fees, and this not being an action in foreclosure proceedings, no attorney's fees can be required, and a note asking for such except in foreclosure proceedings is illegal."

This demurrer was overruled by the court. Thereafter the appellant filed an answer in four paragraphs: (1) General denial; (2) lack of jurisdiction; (3) that his signature was obtained by fraud and misrepresentation; and (4) that the plaintiff failed to comply with the provisions of the Petty Loan Act. To this answer the appellee filed a reply in general denial to the second, third, and fourth paragraphs of answer and an affirmative reply to the fourth paragraph alone admitting that it could not recover attorney's fees upon the note. Upon the issues thus formed the cause was submitted to the court without the intervention of a jury and on the 16th day of April, 1934, the court entered judgment in favor of the appellee in the sum of $159.13. Thereafter the appellant filed a motion for new trial properly setting out the following grounds, to wit:

" 1. The decision or finding of the court is not sustained by sufficient evidence.

" 2. The decision of the court is contrary to law."

This motion was overruled by the court and the appellant now appeals assigning as error in this court: (1) The court erred in overruling the demurrer of appellant to the complaint of appellee; (2) the court erred in overruling appellant's motion for a finding for the appellant at the conclusion of appellee's case; (3) the court erred in overruling appellant's motion for new trial. All of the above errors raised but two questions and may be considered together.

The court did not err in overruling the demurrer to the complaint. The municipal court of Marion county had jurisdiction of the subject-matter in this cause. Section 1725, Burns' Annotated Statutes 1926 (section 4-2502, Burns' Indiana Statutes Annotated 1933, section 1717, Baldwin's Ind.St.1934). The note not only contained the words " value received," but also complied with the Petty Loan Act by containing a statement of the actual amount of money received by the borrower in the following words, " amount of money actually paid to borrower--$93.00." This is a sufficient compliance with section 9779, section 10467, supra. Wells et al. v. Indianapolis Co. (1928) 88 Ind.App. 231, 161 N.E. 687.

The...