Wiltfong v. Schafer

• Decision Date: 13 December 1889
• Citation: 23 N.E. 91,121 Ind. 264
• Parties: Wiltfong v. Schafer.
• Court: Indiana Supreme Court

121 Ind. 264

23 N.E. 91

Wiltfong

v.Schafer.

Supreme Court of Indiana.

Dec. 13, 1889.

Appeal from circuit court, Madison county; D. Moss, Judge.

Action by John W. Wiltfong against Dorothy J. Schafer, executrix of the estate of Peter Schafer, deceased, on a promissory note. Judgment for defendant. Plaintiff appeals.

William S. Diven, for appellant. Chipman & Chipman, for appellee.

Coffey, J.

This was an action instituted by the appellant against the appellee in the Madison circuit court upon a promissory note. The note purports to have been executed by the appellee to one A. J. Selby for the sum of $185, on the 5th day of May, 1886, due in 90 days after date, and payable at Exchange Bank, in Anderson, Ind. The complaint avers that said Selby, for full value, in the due course of business, indorsed said note to Theodore Fields before maturity, and that said Fields, in like manner, and for full consideration, in the due course of business, indorsed the same to the appellant before maturity. The appellee filed an answer in three paragraphs, the first being a general denial. The second is a special non est factum, in which the appellee admits signing the note in suit, but avers that since signing the same said note, without his knowledge or consent, has been changed in two particulars, viz: That the figure “8” appearing therein has been inserted before the words “percent.,” thereby making said note bear 8 per cent. interest, when in truth and in fact said note bore no interest. and was to bear no interest, as executed by the appellee; that the words “with ten per cent.” were in said note immediately preceding the words “attorney fees,” when the same was signed by the appellee, but that the same has since been struck out, thus providing for attorney fees without any limitation as to the amount. The third paragraph admits the execution of the note, and avers facts sufficient to avoid the same in the hands of the original payee, and avers that said payee and his immediate indorsee and the appellant were partners in the transaction out of which the note originated, and had notice of the facts set out in said answer, and that said note was assigned to them for the purpose of giving color to their claim to be innocent purchasers, and was without consideration. A demurrer to the second and third paragraphs of the appellee's answer was overruled, and appellant excepted. The appellant made an affidavit for a change from the regular judge of the Madison circuit court to some other judge, and by his attorney of record filed said affidavit, and moved the court for a change from the said regular judge, but his motion was overruled, and he excepted. A trial of the cause by jury resulted in a verdict for the appellee, upon which the court rendered judgment. The appellant assigns as error- First, that the court erred in overruling the appellant's motion for a change from the regular judge; second, that the court erred in overruling the appellant's demurrer to the second and third paragraphs of the answer of appellee; third, that the court erred in overruling the appellant's motion for a new trial; fourth, that ...