Stoy v. Bledsoe

• Decision Date: 19 November 1903
• Docket Number: 4,546
• Citation: 68 N.E. 907,31 Ind.App. 643
• Parties: STOY v. BLEDSOE ET AL
• Court: Indiana Appellate Court

68 N.E. 907

31 Ind.App. 643

STOY v. BLEDSOE ET AL

No. 4,546

Court of Appeals of Indiana

November 19, 1903

From Martin Circuit Court; H. Q. Houghton, Judge.

Suit by William L. Stoy against Anthony Bledsoe and another. From a judgment for defendants, plaintiff appeals.

Affirmed.

J. B Marshall and A. L. Carrico, for appellant.

Hiram McCormick and F. E. Gilkison, for appellees.

OPINION

WILEY J.

November 28, 1900, appellee Anthony Bledsoe executed to one Hughs two notes for $ 100, each payable at a bank within this State, one of which notes was due August 28, 1901, and the other one year from date. To secure their payment Bledsoe executed a mortgage on certain real estate, in which his wife, his co-appellee, joined. The mortgage was duly recorded. December 6, 1900, Hughs assigned the notes and mortgage to Houghton and Moser, who, on September 2, 1901, assigned the same to said Hughs, who on September 11, following, assigned said notes and mortgage to appellant without recourse. The several assignments of mortgage were duly acknowledged and recorded. Appellee Anthony Bledsoe at the same time executed a chattel mortgage to said Hughs upon a span of mules, wagon, etc., which he had purchased of Hughs, to secure the payment of the notes sued on, and this mortgage was also assigned to Houghton and Moser. Appellant, as assignee, sued on the notes and to foreclose the mortgage covering the real estate. The cause was put at issue by answer and reply. Trial by the court, and upon proper request the court made a special finding of facts, and stated its conclusions of law thereon. The conclusions of law were to the effect that appellant was not entitled to recover, etc.

There are five specifications in appellant's assignment of errors, viz.: (1) That the court erred in overruling the demurrer to the second and third paragraphs of answer; (2) the court erred in its conclusions of law; (3) the court erred in overruling appellant's objection to the admission of certain evidence; (4) that appellee's answer, nor either paragraph, does not state facts sufficient to constitute a defense, etc.; and (5) the court erred in overruling appellant's motion for a new trial.

The third and fourth specifications do not present any question for review. The only way the question attempted to be raised by the third was to assign it as a reason for a new trial. As to the fourth, it has many times been ruled that the sufficiency of an answer can not be raised for the first time in an appellate tribunal by an assignment of error. Elwood, etc., Co. v. Harting, 21 Ind.App. 408, 52 N.E. 621; Austin v. McMains, 14 Ind.App. 514, 43 N.E. 141; Stephens v. Smith, 27 Ind.App. 507, 61 N.E. 745; City of Evansville v. Martin, 103 Ind. 206, 2 N.E. 596; State, ex rel., v. Curry, 134 Ind. 133, 33 N.E. 685.

The first specification challenges the sufficiency of the second and third paragraphs of answer jointly. It follows that if either of them is sufficient to withstand a demurrer the assignment is not available, even though the other might be bad. American Tin-Plate Co. v. Guy, 25 Ind.App. 588, 58 N.E. 738; Kahn v. Gavit, 23 Ind.App. 274, 55 N.E. 268; Colles v. Lake Cities Electric R. Co., 22 Ind.App. 86, 53 N.E. 256; Town of Thorntown v. Fugate, 21 Ind.App. 537, 52 N.E. 763; Boots v. Ristine, 146 Ind. 75, 44 N.E. 15; City of South Bend v. Turner, 156 Ind. 418, 83 Am. St. 200, 60 N.E. 271.

We shall first consider the second paragraph of answer. This paragraph attempts to set up facts showing that the consideration for which the notes in suit were given had wholly failed before they were assigned to appellant, and that he took them with knowledge of that fact. It is averred that the notes were given for a span of mules and other personal property purchased of Hughs by appellant Anthony and that the mortgage was given to secure their payment; that at the time of said sale and the execution of the notes, appellant's assignor did not have a legal title to said property, in that there was an unpaid mortgage upon said property in favor of Houghton and Moser for $ 250, and that appellees had no knowledge thereof; that at the time said notes were executed appellees also executed a chattel mortgage on the property purchased of said Hughs as an additional security; that immediately after appellees got possession of said property it was levied upon by the sheriff of Martin county, by virtue of an execution issued from the Martin Circuit Court in favor of one Baker against said Hughs; that immediately thereafter they called upon appellant's assignor to secure said property for them, and were informed by said Hughs that said property belonged to Houghton and Moser by virtue of a mortgage executed to them by said Hughs prior to the sale of the property to appellee Anthony, and told said Anthony to give himself no further trouble concerning said property; that said Houghton and Moser would take the property under their mortgage. It is further alleged that immediately thereafter, said Houghton and Moser filed a suit in the Martin Circuit Court to recover possession of said property, and claimed in the trial of the cause that they held the notes and mortgage of appellees upon which this suit was brought, and the chattel mortgage covering said property executed by said Anthony, as collateral security for the payment of their debt against Hughs, secured by...