Simons v. Kosciusko Building, Loan & Savings Association

• Decision Date: 29 October 1913
• Docket Number: 22,487
• Citation: 103 N.E. 2,180 Ind. 335
• Parties: Simons v. The Kosciusko Building, Loan and Savings Association
• Court: Indiana Supreme Court

103 N.E. 2

180 Ind. 335

Simons v. The Kosciusko Building, Loan and Savings Association

No. 22,487

Supreme Court of Indiana

October 29, 1913

From Kosciusko Circuit Court; Francis E. Bowser, Judge.

Action by The Kosciusko Building, Loan and Savings Association against William H. Simons and others. From a judgment for plaintiff, the defendant, William H. Simons, appeals. (Transferred from the Appellate Court under § 1394 Burns 1908, Acts 1901 p. 565.)

Reversed.

Wood & Aiken, James W. Cook and Miller, Shirley, Miller & Thompson for appellant.

L. W Royse and J. H. Brubaker & Son, for appellee.

OPINION

Myers, J.

Action by appellee against appellant and others, on a promissory note, and to foreclose a mortgage on real estate. An amended complaint was filed in which the word "Savings" was omitted from the caption. Copies of the note and mortgage, articles of association, constitution and by-laws in which the name properly appears, appear in the record immediately following the amended complaint, and are referred to therein as filed with and made parts thereof. One of the grounds of the insufficiency of the complaint here urged is that the amended complaint omits the word "Savings," and that the exhibits showing the note and mortgage made to, and the articles of association and by-laws are those of The Kosciusko Building, Loan and Savings Association, and that the real party in interest is not shown to be a party by the complaint, and no assignment is alleged. In the assignment of errors the word "Savings" is omitted, though the judgment is in favor of The Kosciusko Building, Loan and Savings Association. There was an appearance and agreement to submit. The failure to file copies of certificates of stock held as collateral to the loan, and the alleged failure to file the exhibits with the amended complaint are relied on as rendering the complaint insufficient on demurrer.

We must assume that the exhibits were filed with the amended complaint as they appear in the record with it. Blackburn v. Crowder (1886), 108 Ind. 238, 9 N.E. 108; Northwestern, etc., Ins. Co. v. Hazelett (1886), 105 Ind. 212, 4 N.E. 582, 55 Am. Rep. 192; Dunkle v. Nichols (1885), 101 Ind. 473; Friddle v. Crane (1879), 68 Ind. 583.

It is not necessary that they should have been designated otherwise than as being filed as exhibits. Fireman's Ins. Co. v. Finkelstein (1905), 164 Ind. 376, 73 N.E. 814; Thompson v. Recht (1902), 158 Ind. 302, 63 N.E. 569; Reed v. Broadbelt (1879), 68 Ind. 91; Wilson v. Vance (1877), 55 Ind. 584.

If appellant's position be well taken as to the insufficiency of the complaint on account of the omission of the word "Savings," his appeal here should be dismissed, for the reason that he has omitted it from the assignment of errors, while the judgment is in favor of the Kosciusko Building, Loan and Savings Association. Both positions are too narrow. The omission was doubtless clerical in each instance, but in the circuit court it was a matter which might have been amended at any time, and it will be so treated here, besides the note and mortgage, articles of association, and the constitution and by-laws will control the caption of the complaint. Stewart v. Knight & Jillson Co. (1906), 166 Ind. 498, 76 N.E. 743; Indiana, etc., Assn. v. Plank (1899), 152 Ind. 197, 52 N.E. 991; Brunson v. Henry (1894), 140 Ind. 455, 39 N.E. 256; Bell v. Corbin (1894), 136 Ind. 269, 36 N.E. 23; Stanton v. Kenrick (1893), 135 Ind. 382, 35 N.E. 19; § 405 Burns 1908, § 396 R. S. 1881.

As to the assignment of errors, the names of parties to judgments should not be set out, and a timely motion might have had the effect of a dismissal here, or the court might act on its own motion, but for the fact that appellee under a caption which omitted the word "Savings," before the record was filed, signed an agreement to submit the cause and has filed briefs on the merits, without suggestion of the point. More latitude as to the name in suing or being sued is indulged as to corporations than individuals. Where the parties appear to an action against a corporation sued under a wrong name, and contest on the merits, it is sufficient to give the court jurisdiction. Angell & Ames, Corporations §§ 100, 101, 645-652.

Complaint is made as to the failure to file copies of the certificates of stock claimed to have been assigned, and held by appellee as collateral security. The constitution and by-laws required that one could only become a borrower by becoming the owner of stock, and that upon a loan being made the stock should be transferred to, and held as collateral by the association, and it is alleged in the complaint that such certificates with their assignments are filed with and made parts of the amended complaint, and they do not appear in the record, but it is alleged that appellant neglected and failed to pay the monthly dues on his stock and that the shares are now of no value. The action was not based on the certificates of stock and copies of them, and the assignments were not necessary to be filed with the complaint, especially in view of the allegation of their being of no value, and will be disregarded. Indiana, etc., Assn. v. Plank, supra; Stewart v. Knight & Jillson Co., supra; Coppes v. Union, etc., Loan Assn. (1904), 33 Ind.App. 367, 69 N.E. 702.

Exceptions were reserved to the conclusions of law upon the facts found by the court upon proper request. It is found that in January, 1893, appellant held two thousand dollars in stock of appellee in each of two series of the association. On that day he was awarded under the constitution and by-laws a loan of $ 2,000 in each series; he was at the time a director in the association. In one series he elected to have the premium bid by him, $ 350, deducted from the amount of the loan, and in the other series $ 470, and received that much less money in the respective series. He executed promissory notes of the same date, in ordinary form, bearing interest at the rate of six per cent, payable monthly, one payable July 1, 1900, and the other July 1, 1902, the maturity of the notes being fixed as of the estimated time of maturity of the stock in the respective series. Concurrently with the execution of the notes he executed a mortgage on real estate in the usual form of mortgages to secure ordinary loans, describing the notes as bearing interest at six per cent payable monthly, and containing an express promise to pay the loan; that he had paid on one series of stock thirty months, $ 300, and on the other six months, $ 60, and he also assigned the shares to the association as collateral security. The monthly dues on each share was $ 1, and after the loan the shareholder was to pay interest at six per cent per annum in monthly installments; that appellant at the time the loan was made knew that the loan was being made under the by-laws of the association. Thereafter he paid dues and interest regularly from January, 1893, to January, 1894, and thereafter paid interest, dues and penalties, not with monthly regularity, but by January, 1905, he had fully paid up the loan in the fourth series and his obligation was cancelled.

There was a motion to strike out those parts of the complaint which seek, by allegation, to read into the note and mortgage the provisions of the constitution and by-laws as being a loan made under them. The error, if any, in overruling a motion to strike out parts of a pleading does not constitute reversible error. Harter v. Songer (1894), 138 Ind. 161, 37 N.E. 595; Boruff v. Hudson (1894), 138 Ind. 280, 37 N.E. 786; Aetna Life Ins. Co. v. Deming (1890), 123 Ind. 384, 24 N.E. 86, 24 N.E. 375; Colglazier v. Colglazier (1889), 117 Ind. 460, 20 N.E. 490.

The real question in the case is as to the amount of the recovery. The finding of the court as to the fifth series is stated as follows:

Arrears on dues on said stock in said fifth series

to commencement of suit

$ 1,310.00

Interest on loan

842.36

Penalties on stock

192.00

$ 2,344.36

In addition thereto there is due $ 2,000.00 and interest

to date, December, 1909

2,420.00

Total

$ 4,764.36

Said ten shares of stock were worth at commencement

of suit

1,936.95

Leaving balance

$ 2,825.41

To which $ 120 attorneys' fees were added, and judgment rendered for $ 2,945.41. It is elsewhere found that appellant made payments at different intervals from January, 1893, to January, 1895, on account of dues, $ 300; on account of interest, $ 300; on account of penalties, $ 100. Other payments are found to have been made on account of interest on the note sued on as follows: July 1, 1898, $ 100; March 23, 1901, $ 100; January 17, 1905, $ 267.64; totaling $ 467.64.

The provisions of the act of 1885 (Acts 1885 p. 81, § 4110 Burns 1908), applying to withdrawing stockholders, entitles the withdrawer "to receive the amount paid in upon the stock to be withdrawn, less all fines and charges thereon * * * when the withdrawal occurs after the expiration of one year from the beginning of the series * * * he shall receive in addition to the amount paid in, less fines and other charges as aforesaid, at least legal interest on each instalment paid from the date at which the same was payable" (paid). By § 6 of [103 N.E. 5] the act (Acts 1885 p. 81, § 4112 Burns 1908) in case of a borrower in default for three months, payment of "principal, interest unpaid, premiums, if any, and fines, without deducting premiums of interest paid, may be enforced," etc. By § 7 of the act (Acts 1885 p. 81 § 4113 Burns 1908), a borrower not in arrears may withdraw, in which event he must pay "the full face amount of the principal of his loan." By § 12 of the act (Acts 1885 p. 81, § 4118 Burns 1908), power is given such associations to provide for the "forfeiture of all...