Rozplochowski v. Peoples State Bank

Kime, J.— The Western State Bank was the receiver for the Peoples State Bank of South Bend, Indiana. The appellant here filed a petition (his complaint) alleging that he had on deposit in the Peoples State Bank, at the time it went into the hands of the receiver, the sum of $6,360.74; that there had been two dividends ordered paid by the court in the administration of the receivership ; that the receiver had paid one of these to the appellant, but had refused to pay the second dividend ordered; and that this dividend amounted to $318.03, and asked for judgment for that amount. To this petition the appellee filed an answer in general denial and a second paragraph of answer. There *663 after the second paragraph of answer was withdrawn and an amended second paragraph of answer was filed. Following this the appellant demurred to the “set-off, cross-complaint or action set up in the verified” amended second paragraph of answer. This demurrer was overruled and the appellant then filed a reply to the amended second paragraph of answer in six paragraphs. There was a demurrer filed by the appellees to the second, third, fourth, and fifth paragraphs of reply which was overruled. Following this the appellees filed a second demurrer to the appellant’s second, third, fourth, and fifth paragraphs of reply, which was also overruled. On these pleadings trial was had by a jury. At the conclusion of the evidence the appellant dismissed his third and fourth paragraphs of reply and amended his second paragraph to conform to the proof. The appellees moved the court for a directed verdict on the second and fifth paragraphs of appellant’s reply. The court directed the jury to return a verdict in favor of the appellees and against the appellant on issues raised by appellant’s fifth paragraph of reply to the amended second paragraph of answer and for the appellees and against the appellant on issues raised by appellant’s fifth paragraph of reply to the amended second paragraph of answer and for the appellees and against the appellant on appellees’ second paragraph of answer as to the liability of the appellant on a $14,000.00 note designated as Exhibit “C” in the appellees’ second paragraph of answer. The jury returned a verdict for the appellees and against the appellant on the issues raised by the appellant’s fifth paragraph of reply to the amended second paragraph of answer and for the appellees and against the appellant on the appellees’ second paragraph of answer and further that the said $14,000.00 note had not *664 been paid or satisfied nor had the appellant been released from liability thereon. A motion for new trial was then filed and overruled and the court rendered judgment that the appellant take nothing on his fifth paragraph of reply and nothing on the issues raised by appellees’ second paragraph of answer as to the liability of appellant on the $14,000.00 note; that the note had not been paid or satisfied nor had appellant been released from liability thereon; that appellant was a depositor in the Peoples State Bank in the sum of $6,695.51 and that two dividends of five per cent had been declared and the same have not been paid and further that appellant recover nothing on appellees’ second paragraph of answer and that appellant has not paid or satisfied the notes designated as Exhibits “A” and “B” in the second paragraph of answer. The issues formed by the complaint and the general denial thereto have not been determined, nor have the issues tendered by the appellant’s sixth paragraph of reply. These issues were not withdrawn or dismissed and until they are disposed of there is no final judgment of record from which an appeal can be taken. Daegling et al. v. Strauss et al. (1915), 59 Ind. App. 672, 109 N. E. 920; Gray v. Gray et al. (1931), 202 Ind. 485, 176 N. E. 105. The appellee has filed a motion to dismiss. From the above it is clear that the appeal should- be dismissed and it is so ordered.