Schmidt v. Kreuger

• Decision Date: 31 March 1936
• Docket Number: No. 15292.,15292.
• Citation: 200 N.E. 713,102 Ind.App. 36
• Parties: SCHMIDT v. KREUGER.
• Court: Indiana Appellate Court

102 Ind.App. 36

200 N.E. 713

SCHMIDT

v.KREUGER.

No. 15292.

Appellate Court of Indiana, in Banc.

March 31, 1936.

Appeal from Superior Court, Marion County; Clarence E. Weir, Judge.

Action by Charles D. Schmidt against Christena Kreuger. From a judgment for defendant and an order refusing a new trial, plaintiff appeals.

Affirmed.

J. Fred Masters and Emmanuel E. Buckler, both of Indianapolis, for appellant.

White & Jones, of Indianapolis, for appellee.

KIME, Presiding Judge.

This was an action on a promissory note, the verified complaint of one paragraph alleging that on January 31, 1913, appellee “together with her husband” executed the note herein sued on in the principal sum of $400 payable to the appellant; that $48 in interest had been paid thereon, to wit, $24 on January 31, 1918, and $24 on December 9, 1924; that $300 in interest was due and that plaintiff was entitled to a $100 attorney's fee, making a total sum of $800; that “Fred Kreuger signer of the note” was deceased and his estate had never been administered upon and that he left no estate; that demand for payment had been made; and that a copy of the note was attached as an exhibit.

The complaint was filed May 10, 1933. Appellee filed thereto four paragraphs of answer, first a general denial, a second paragraph setting up the ten-year statute of limitations, a third pleading coverture and a fourth of confession and avoidance. Demurrers were overruled to the second and third paragraphs of answer and sustained to the fourth paragraph. Appellant then filed four paragraphs of reply, the first in general denial, the second alleging payment on the note by appellee to bring it within the statute, and a third alleging that the note was executed jointly with her husband, and a fourth alleging the insolvency of the estate of appellee's husband.

The cause was submitted to the court for trial on those issues, and the court made a finding for appellee and rendered judgment that the appellant take nothing by his complaint and that he pay the costs of the action. A motion for new trial stating as grounds therefor that the decision was not sustained by sufficient evidence and that it was contrary to law was overruled, and that action, together with the assignment that “the court erred in overruling the appellant's demurrer to the second and third paragraphs of the appellee's answer,” are the errors relied on for reversal.

[1] The second paragraph of answer was good, as it sufficiently...