Indianapolis Piano Manufacturing Co. v. First National Bank

33 Ind. 302

• Court: Indiana Supreme Court
• Decided: July 1, 1870
• Status: Published

Opinion

Ray, J.

This action was upon two notes executed by the appellant to the order of J. George Stiltz, and indorsed by parties who tvere made defendants to the action, and it is also alleged that the payee indorsed the note to the bank. A demurrer was overruled to the complaint.

• The appellant objects that no where except in the title of the action does the name of Stiltz appear as a defendant. Stiltz however appeared and answered, and judgment was rendered against him. ITe does not appeal, and if there were error, it could not 'avail the appellant. Again, it is said that no copy of the assignment is set out. The fact, however, is averred, and as against the maker the proof of that fact need not be pleaded. The maker of the' notes cannot avail itself of any defect in the allegations against the indorsers. The demurrer was correctly overruled.

The defendant filed certain paragraphs of an answer, which, upon interrogatories being filed by appellee and answered by appellant, were stricken out on motion. This action of the court is excepted to; but the answer is not brought into the record by bill of exceptions, and we cannot pass upon the objection. Fisher v. Ewing, 30 Ind. 130; Ammerman v. Crosby, 26 Ind. 451; Oiler v. Bodkey, 17 Ind. 600. The appellant complains of other alleged errors, which it asserts, in the motion for a new trial, were committed by the court; but no bill of exceptions is filed, and we cannot accept the statements contained in the motion for a new trial as true. McSheely v. Bently, 31 Ind. 235.

Judgment affirmed, with six per cent, damages and costs.