Hill v. Kerstetter

On Petition for Rehearing.

Rabb.

6. -Appellant earnestly insists, on rehearing, that this court is in error in refusing to interfere with the finding of the court below as to the ownership of the bank-stock in controversy. He insists that the evidence shows affirmatively that the 300 shares of bank-stock were legally and properly transferred to him by the proper officers of the bank, upon the books of the bank, that there is no evidence that he wrongfully obtained the certificates for such stock originally issued to appellee Kerstetter, and that the court is in error in holding that no question is presented by the record in reference to the court’s finding and judgment in favor of said appellee for $100. Appellant undertakes to make the point that as no demand for the $100 was alleged to have been made by appellee Kerstetter, upon appellant, before the suit was brought, therefore no cause of action was stated as to said claim, and the finding thereon was outside of the issues.

8. In reference to the first contention made, there was evidence in the record that certificates of stock for the 300 shares mentioned in the complaint were originally issued to appellee Kerstetter, and there is also evidence justifying the inference that she never at any time authorized the officers of the bank to cancel certificates for ten shares and issue others to the appellant, or any other person; and the unauthorized act of the officers of the bank in canceling the original certificates for said ten shares and reissuing others to appellant could confer no legal right upon him to such stock.

*4379. *436The complaint of appellee Kerstetter alleged her ownership of the stock in question; that she was rightfully en*437titled to all dividends tliereon; that the appellant had wrongfully obtained possession of the stock and wrongfully received $100 dividends thereon; and among other relief, demanded judgment against him for this sum. The appellant in noway cpiestioned the sufficiency of this complaint in the court below, either by demurrer, motion to separate causes of action, to paragraph the different causes of action stated in the complaint, or to strike out the allegations of the complaint regarding the $100; but filed an answer of general denial, and went to trial with the issues in this condition. The court had jurisdiction of the parties, and jurisdiction of the subject-matter, and after a trial upon the merits, in which appellant took his chance to win or lose, it is now too late for him to say that the questions determined by the court were not •within the issues.

10. When the sufficiency of the cause of action is called in question for the first time after a finding or verdict, if the facts stated in the complaint are sufficient to bar another suit for the same cause of action, all other defects are cured by the verdict and finding. Peters v. Banta (1889), 120 Ind. 416; Loeb v. Tinkler (1890), 124 Ind. 331. Here the facts stated are amply sufficient to bar another action by appellee Kerstetter for the $100, and the finding of the court upon that question was within the issues as they were presented, even though the complaint might not have been sufficient to withstand a demurrer or a motion to strike out, because of failure to allege a demand before suit, a question we do not decide.

Petition for rehearing overruled.