Zotter v. Lawrence

95 Ind. 346, 1884 Ind. LEXIS 191

• Court: Indiana Supreme Court
• Decided: May 10, 1884
• Docket: No. 10,240
• Status: Published

Opinion

Franklin, C.

Appellee sued appellants upon four several promissory notes. Answers and replies were filed, issues were formed, and a trial by the court had, finding for the plaintiff, and judgment rendered for $1,200.

No question was raised upon the pleadings, nor motion made for a new trial in the court below, and the record shows that the finding of the court was made by agreement.

The error assigned is that neither paragraph of the complaint states facts sufficient to constitute a cause of action.

The objections made to each paragraph of the complaint are, that neither of them shows how the notes were owned and held by the plaintiff, he being assignee; and that the plaintiff could only recover six instead of ten per cent, interest. Neither of these objections has any foundation. Each paragraph of the complaint shows that each note was transferred to the plaintiff by the endorsement on the back thereof of the name of the payee, and each note provided for the payment of ten per cent, interest. But the latter question can not be raised by objecting to the sufficiency of the complaint. Each paragraph of the complaint would have been good on demurrer, and is clearly not liable to objections raised for the first time in this court.

We see no merit in this appeal. The notes were executed in 1875; this suit was commenced in 1880; the appellants have unreasonably delayed payment of the debt. The judgment ought to be affirmed, with ten per cent, damages.

Per Curiam. — It is therefore ordered, upon the foregoing' opinion, that the judgment of the court below be and it is in all things affirmed, with ten per cent, damages, and with costs.