Sims v. Parks

32 Ind. 363

• Court: Indiana Supreme Court
• Decided: November 15, 1869
• Status: Published

Opinion

Ray, J.

Suit on a promissory note against the appellant as indorser. The complaint alleges, that when the note became due the appellant requested the holder not to sue the maker until further notice from him, and from that date to the present the maker of said note has been notoriously insolvent and a non-resident of the State; and that the note is still unpaid. Á demurrer was overruled to this complaint. We discover no error in this ruling.

S. Claypool and F. P. A. Phelps, for appellant. W. B. Harrison and W. S. Shirley, for appellee.

A second paragraph of answer was filed, alleging, that some three months after the note was due, appellant served a notice upon appellee to bring suit, which notice is set out, and required the appellee, as president of a bank where the note was payable, to commence attachment proceedings against the maker of the note and garnish certain persons.

A third paragraph was filed, which, in addition to the allegations in the second, averred, that at the date of the notice the maker of the note had a sufficient amount of property which could have been reached by the proceedings required to be instituted by the appellant. A demurrer was sustained to each of these paragraphs. Leaving out of view the question whether the notice did not supply the want of the averment in the complaint that the note was negotiable, it seems clear that the requirement that appellee should commence proceedings in attachment and make an affidavit and give bond, was plainly unreasonable, and amounted to no notice whatever. The complaint alleged a request not to sue, and the answers constituted no defense. The evidence sustains the finding.

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