Charters v. Miller
Charters v. Miller
Opinion of the Court
Action by appellee to recover money alleged to have been delivered by appellee to appellant Charters, who was at that time acting as cashier of appellant bank, for the purpose of buying $200 worth of Liberty Bonds, it being alleged that the money was never returned to her, and that no bonds were delivered to her. The complaint is in two paragraphs: the first being a common count for money had and received while the second sets up the facts relied upon in detail. Appellant Charters answered in general denial. Appellant bank, filed a cross-complaint in which it alleged that it did not receive any of the money alleged to have been delivered by appellee to appellant Charters and received no benefit therefrom. It asked that, in the event appellee recovered a judgment, appellant bank be found only secondarily liable for its payment, and that the property of appellant Charters be exhausted before any recourse was had against it for the payment of such judgment. A demurrer to this cross-complaint was filed by the appellee and withdrawn before it was ruled upon. Answers in general denial to the cross-complaint were filed by appellee, and by appellant
On May 29, 1922, appellant Charters filed a motion for a new trial and also a motion to modify the judgment by eliminating and expunging therefrom the portion above quoted. Both motions were overruled on May 29, 1922. On November 20, 1922, appellant Charters served notice on the clerk arid the other parties that he would appeal to the Appellate Court. The appeal was within 180 days from the court’s ruling on the motion for a new trial, and there was no defect of parties in the assignment of errors. There was due notice of the appeal, and the motion to dismiss the appeal is overruled.
Appellant assigns as error that “the judgment of the court is contrary to law.” Such assignment is too general, and presents no question. Goodwine v. Crane, Trustee (1872), 41 Ind. 335; Board
Appellant says that so much of the judgment as is quoted above was outside of the issues formed and tried, and outside of the pleadings, and that there was no basis for the same, and the court erred in entering the same as a part of its judgment. But we do not so understand the law.
The final judgment of the court follows its finding as modified, and is in harmony with the complaint. In the absence of evidence it is presumed that such finding and judgment is fully sustained by the evidence.
Section 594 Burns 1914, §568 R. S. 1881, provides that the court may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves. Appellants were both directly liable to appellee, and under said section and for the .purpose of avoiding another action, the court was fully authorized to determine the ultimate rights of the judgment defendants, so far as possible, as between themselves.
The judgment is affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.