Newcome v. Dunham , 27 Ind. 285 ( 1866 )

Erazer, J.

This was a suit by the appellee, Dustin A. Dunham, against the defendants, Robert B. Newcome and Franklin G. Newcome, and one David 8. Burson, upon a note and the indorsement thereof. The note was executed by the defendants Burson and Robert Newcome, payable to the defendant Franklin G. Newcome, at the Muncie branch of The Bank of the State, and was indorsed in blank by the payee, not paid at maturity, and duly protested for non-payment, and the necessary notice thereof given to charge the indorser. ' It was alleged also that the plaintiff’ became the holder of the note before maturity. David 8.-Burson was defaulted. The Newcomes filed an answer in the nature of a counterclaim, alleging that the plaintiff was not the real pai’ty in interest; that the note actually belonged to one John W. Burson, and that the suit was brought in the name of Dunham to enable Burson to avoid his liability to the makers and indorsers of the note, growing out of the following facts, to-wit: that the Newcomes became liable on the note merely for the accommodation of the said John W., and delivered the same to him with the agreement that if the note was negotiated he would pay it at maturity; that they received no consideration or benefit from the note, or its proceeds; that said John W. received the whole. But if it should be shown that the plaintiff is the bona fide holder, they ask then that judgment be rendered against John W. also, and that they stand only as his sureties, and that execution be levied first upon his property, &c. John W. was made a defendant to this counterclaim, and a judgment was prayed. The plaintiff had a demurrer sustained to this pleading, and that is assigned for error. John W. Burson answered the counterclaim, denying the jurisdiction of the court, for the reason, that he then was, and always had been, a resident of Delaware county, subject to the process of the courts of that county, which have jurisdiction, &c. To this, a demurrer by the Newcomes was overruled, and that ruling is also questioned here. If the answer had been sufficient to put in issue the question whether the plaintiff was the real party in interest, it would have been good on demurrer. 2 G. & H., § 8, p. 84. But it is not sufficient for that purpose. Swift v. Ellsworth, 10 Ind. 205; Lamson v. Falls, 6 id. 309. The note, if the answer be true, must have been negotiated, otherwise no proceeds thereof would have been received by John W., as is alleged. Prima facie, the plaintiff’s possession of it would indicate that it was negotiated to him, and the complaint indeed alleges that he became the holder thereof before maturity. These facts not being denied, and no others averred by which it would appear that the note had afterwards become the property of John W., the pleading cannot, in view of the cases cited, be deemed sufficient.

In the further discussion of this pleading, it must be considered, then, as a counterclaim. But it asserts substantially nothing against the plaintiff; nothing even of which he had notice. Its sufficient averments may all be conceded and still the plaintiff would be entitled to his judgment against the Newcomes, and would have no right to a judgment against John W. Burson. The latter might be liable over to the Newcomes, but why should the present suit be complicated, embarrassed or delayed by the trial of the question between the Neiocomes and John W. ? It was not necessary to the granting of full relief and the doing of complete justice between the plaintiff' and the Newcomes. Frear v. Bryan, 12 Ind. 343. The rights of the latter must, wo think,- be asserted against John W. by a separate suit against him, and it is plain that that must be instituted in the county of his residence. 2 G. & H., § 33, p. 58.

J. P. Bieldad, for appellants. W. A. Bielde, for appellees.

The judgment is affirmed, with costs.