Obermeyer v. Indianapolis Lien & Credit Co.

232 N.E.2d 895, 142 Ind. App. 68, 1968 Ind. App. LEXIS 536

• Court: Indiana Court of Appeals
• Decided: January 12, 1968
• Docket: No. 967-A61
• Status: Published

Opinions

Bierly, J.

— This cause was commenced, in the Municipal Court of Marion County, Room 1, by appellee filing a complaint on an open account. The defendants below were appellant and Blue & White Service, Inc., Appellee was the assignee, with recourse, of defendants Blue & White Service, Inc., claim against appellant.

The issues were formed by the complaint, appellants’ plea in abatement, and appellee’s demurrer thereto.

Blue & White Service, Inc., was a corporation with its principal place of business in Marion County. ..By assigning an account of appellant to appellee, appellee gained a party defendant who was also a resident of Marion County.

The record, as summarized by appellant, shows the following:

“Appellee’s complaint alleged it to be a corporation, with its principal office and place of business in Indianapolis, Indiana. In addition,, it alleged that appellant purchased from Blue certain merchandise upon open account; that Blue executed an assignment with recourse of this account to appellee; and Exhibit “A” thereto stated that the general office of Blue is in Indianapolis.

“Appellant entered his> special appearance questioning the jurisdiction of the court over his person and the venue of the cause of action. Thereafter he entered his answer in abatement alleging his prior and continued residence in Howard County, together with his address therein; his status as the only party immediately liable to judgment and execution; and the venue provisions of Indiana in such cases, which prescribe a forum other than the one chosen by appellee.

“Appellee demurred on the ground that the appellant’s answer in abatement did not state facts sufficient to abate the cause of action stated in his complaint.”

On March 22, 1967, the trial court sustained appellee’s demurrer and the appellant refused to plead over. The trial court then entered judgment for the appellee for $1,053.22 principal, and $31.58 interest, and costs.

Appellant bases his argument on Burns’ Anno. Stat. § 2-707 (1966 Special Supp.) which, inter alia, states:

“. . . But any action brought by the assignee of a claim, arising out of contract, whether assigned in writing or by delivery, shall be commenced in the county where one or more of the parties immediately liable to judgment and execution resides, and not elsewhere” (emphasis supplied).

Appellee relies on Burns’ Anno. Stat. § 2-226 (1946 Replacement) , which requires the assignor to be made a defendant.

We are of the opinion that the assignor is immediately liable to judgment and execution, based upon the decisions in the cases of Hall et al. v. Suitt (1872), 39 Ind. 317, and Keiser et al. v. Yandes (1873), 45 Ind. 174.

The latter case held:

“All the parties were immediately liable to the plaintiff in this case; the appellants as makers, and the other defendants as indorsers, of dishonored commercial paper; and the appellee was expressly authorized by statute to institute one suit against all of them.”

The same statute was urged in that appeal as we have in the case at bar.

We are of the opinion that for the above reason the trial court committed no error in its ruling on appellee’s demurrer to appellant’s plea in abatement, and should be affirmed.

Judgment affirmed.

Cook, P. J. and Pfaff, J., concur.

Smith, J., dissents with opinion.