that the deed from and to Mary Snodgrass | in Bloomington, where she informed him and said contract were executed at the same that she wanted to deed the property in questime and concurrently with each other; that tion to her daughter, Jennie D. Bollenbacher, it was the intention of all the parties thereto reserving to herself a life estate. After preto embody in said concurrent agreement the paring a deed in accordance with her wishes, provision that the deed from Jennie D. Bol- the question of the daughter's liability to furlenbacher and her husband to Mary Snod- nish the mother a living was considered, grass should be delivered by said Paynter to which resulted in the immediate preparation said Snodgrass only on the condition that of the deed and contract in suit. They were said Jennie D. Bollenbacher should depart all then signed; Mrs. Snodgrass signing the this life before her mother, Mary Snodgrass; deed to appellee first. They were then acthat by mutual mistake of all the parties to knowledged and delivered to the witness, the concurrent agreement, it was written who retained them until after the mother's without that provision, and with the provi- death, when they were returned to the daughsion that it should be delivered to Mary ter. The deeds and contract were prepared Snodgrass upon the death of Jennie D. Bol- at the home of Mrs. Snodgrass, and in the lenbacher; that said agreement did not then presence of all the parties to the transaction. or since that time express the wish or in- Paynter made no charge, and he received no tention of the parties thereto; that said pay for his services. His individual exPaynter was a nephew of Mary Snodgrass, penses to and from Bloomington were paid and a first cousin to Jennie D. Bollenbacher; by appellee. A few days after this transacthat the preparation of the deeds and agree- tion was had, appellee and her husband movment was left to said Paynter, and each be-ed into the home of Mrs. Snodgrass, where lieved that it was in accordance with and ex- they all lived until the latter's death. Immepressed their wishes; that the appellee was diately prior to the preparation of the deeds not aware of this mistake until about the and contract, their object and purpose was distime this action was commenced, December cussed between Paynter and Mrs. Snodgrass, 20, 1905; that it was the intention and agree in the presence of the daughter, her husband, ment of the parties that, in case of the death the wife of the witness, and the notary who of the daughter before her mother, the prop- took the acknowledgment. erty mentioned should go back to the mother, and not descend to the husband, William P. Bollenbacher. [1] Appellants insist that, if the deed had been fully executed, the contract could not affect it, and therefore no cause of action is stated. Ordinarily, to speak of a deed or other instrument of like character as "executed" implies not only that it was signed and acknowledged, but delivered as well. However, as the word is here used, it certainly appears that the pleader did not intend that it should be taken in its technical sense, but as referring only to the signing and acknowledgment of the deed, and not its delivery. Giving the word in question the meaning evidently intended, the objection is not well taken. A fair consideration of the evidence disclosed by the record warrants the conclusion that the witness, as a scrivener, cautioned by his legal learning, undertook to prepare papers which would vest the daughter with the title to the real estate, and obligate her to furnish the mother a living, and only in case the mother should outlive the daughter the title to the property should be revested in the mother. Such was the agreement and intention of the parties, but the procedure through which this agreement was to be made effective was left to the witness. Over appellant's objection the witness was allowed to state what was said and done at the time the deeds and contract were prepared. [2] By statute (section 520, Burns 1908) attorneys are not competent witnesses "as to confidential communications made to them in the course of their professional business, and as to advice given in such cases." But it has been held that communications made to an attorney who is acting for both parties, and in the presence of each other, or while As to the motion for a new trial, two reasons are assigned: (1) That the decision of the court is not sustained by sufficient evidence. (2) The court erred in permitting William H. Paynter, over appellants' objection, to state what occurred between him and Mrs. Snodgrass, for the reason that the re-acting merely as a scrivener, will not be relation of attorney and client existed. garded as confidential. Hanlon v. Doherty, 109 Ind. 37, 9 N. E. 782; McDonald v. McDonald, 142 Ind. 55, 78, 41 N. E. 336; Thomas v. Griffin, 1 Ind. App. 457, 27 N. E. 754; Borum v. Fouts, 15 Ind. 50. The facts in this case bring it within the rule as settled by the cases cited, and the objection to Paynter's testimony was properly overruled. As to the second reason, in substance, it appears from the evidence: That the witness Paynter was a practicing attorney residing at Salem, Ind. That Mary Snodgrass and her daughter, Jennie D. Bollenbacher, were his aunt and cousin, respectively, both living in Bloomington, but in separate dwellings; the daughter and William P. Bollenbacher a [3] The first reason assigned by appellants short time before having intermarried. That in support of their motion cannot be suspursuant to his aunt's request, accompanied tained. The weakness of their contention Cent. Dig. §§ 840-842, 865; Dec. Dig. § 436.*) [Ed. Note. For other cases, see Bankruptcy, 3. JUDGMENT (§ 922*)-ACTION ON JUDGMENT. from valuation or appraisement laws, but withIn an action on a judgment with relief out exemption, judgment without relief, but with benefit of exemption, is improper. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1753; Dec. Dig. § 922.*] 4. APPEAL AND Error (§ 223*)-REVIEW-NECESSITY OF OBJECTIONS. strument accompanying the deed expresses | ing that the basis of that action was a sale of the agreement of the parties, which is sought merchandise. to be reformed because of mistake as to its legal effect. But as we see this case, it is one where the scrivener, through mistake or inadvertence, failed to reduce the actual agreement of the parties to writing. In such cases "equity will interfere with the appropriate relief, either by way of defense to its enforcement, or by cancellation, or by refor. mation, to the same extent as if the failure of the writing to express the real contract was caused by mistake of fact." 2 Pomeroy, Eq. Jur. § 845. See, also, 2 Beach, Eq. Jur. § 544; Parish v. Camplin, 139 Ind. 1, 37 N. E. 607; Sparta School Township v. Mendell, 138 Ind. 188, 37 N. E. 604; Johnson v. Sherwood, 34 Ind. App. 490, 73 N. E. 180; Nichols & Shephard Co. v. Bering, 37 Ind. App. 109, 76 N. E. 776. In the case of Adams v. Wheeler, 122 Ind. 251, 23 N. E. 760, it is said: "It is a well-es tablished principle of equity jurisprudence that where, through the mutual mistake of the parties, the form of an instrument is such that it does not express the agreement as the parties intended it should, the aid of a court of chancery may be invoked to reform the contract or deed. Keister v. Myers, 115 Ind. 312, 17 N. E. 161; Baker v. Pyatt, 108 Ind. 61, 9 N. E. 112. Courts of equity would be justly subject to reproach if they could afford no relief in cases like the present." Having determined that the testimony of the witness Paynter was admissible, there is an abundance of evidence to sustain the decision of the court. Judgment affirmed. (52 Ind. App. 199) KREITLEIN v. FERGER. (No. 7,507.) 1 (Appellate Court of Indiana, Division No. 1. March 8, 1912.) 1. BANKRUPTCY (§ 425*)-DEBTS DISCHARGED -NOTICE. Where the schedule of a debt in bankruptcy proceedings gave only the initial, instead of the full Christian name, of the creditor, and gave his residence as "Indianapolis," without any street or number, and the creditor received no actual notice of the proceedings, the debt was not discharged. [Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. § 775; Dec. Dig. § 425.*] 2. Bankruptcy (§ 436*)-DEBTS DISCHARGED -EVIDENCE OF IDENTITY. Where, in an action by "Charles F." on a judgment for $300, rendered in 1897, the defense is a discharge in bankruptcy in 1905, and the schedule of creditors in the bankruptcy proceeding shows a debt for $271.85 due "C. F.," stated to be for merchandise, the defendant has not sustained the burden of showing that the debt sued on was the one listed in the schedule, although there are in evidence answers of the jury to interrogatories in the action wherein the judgment was rendered, show Where no objection is made or exception taken to the form of a judgment, and no motion made to modify it, the judgment will not be reversed for a mistake in the form. [Ed. Note.-For other cases, see Appeal and 223;* Fraudulent Conveyances, Cent. Dig. 8 Error, Cent. Dig. §§ 1338-1352; Dec. Dig. § 993.] Appeal from Superior Court, Marion County; C. E. Weir, Judge. Action by Charles Ferger against George F. Kreitlein. From a judgment for plaintiff, defendant appeals. Affirmed. John B. Elam, James W. Fesler, and Harvey J. Elam, for appellant. Charles W. Appleman and William E. Reiley, for appellee. HOTTEL, J. Appellee brought this suit to recover on a prior judgment which he held against appellant. The complaint was in one paragraph, to which appellant filed a general denial, and also pleaded a discharge in bankruptcy as a defense. Appellee replied in denial, and the cause was tried by the court, which rendered judgment for appellee in the sum of $508.50, without relief from valuation or appraisement laws. The only error relied upon for reversal is the overruling of appellant's motion for a new trial, the grounds of which motion are (1) that the decision of the court is not sustained by sufficient evidence, and (2) that the decision of the court is contrary to law. The material facts in this case are as follows: On November 23, 1897, appellee recovered a judgment against appellant in the Marion superior court for the sum of $300 and costs, and said judgment is now the basis of this action. Thereafter, in 1905, appellant duly filed his petition in bankruptcy and obtained a discharge therein, which discharge he pleaded in defense when this action was brought in 1908. is whether or not the decision of the court is The only question presented by this appeal sustained by sufficient evidence. Upon this question, the averments of the complaint are conceded to be proven. The question we have to determine is, therefore, whether or not the appellant's answer of discharge in bankruptcy is supported by the evidence. Appellant's position is that "there is no dispute in evidence," and that this court should therefore "determine that, as a matter of For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Rehearing denied, 98 N. E. 1005. Transfer to Supreme Court denied. law, appellant is entitled to judgment" on the facts proven. The appellant also introduced in evidence the original petition and schedules filed thereThe only evidence introduced by plaintiff with in the bankruptcy proceedings of Nowas the judgment, that part of which im-vember 11, 1905. In the schedule, which was a portant to this decision is as follows: "Come statement of all creditors whose claims were again the parties, and the jury having re- unsecured, appears, under the heading turned their verdict herein, finding for the "Names," "C. Ferger;" under the heading plaintiff and assessing his damages at the "Residence," "Indianapolis;" under the headsum of $300, the court renders judgment ing "Place and Date," "Indianapolis, 1895;" thereon. It is therefore considered, adjudg- under the heading "Nature," "Merchandise;" ed, and decreed by the court that the plain- under the heading "Amount," "$271.85." The tiff recover of and from the defendant here- discharge in bankruptcy completed appelin the sum of $300, collectible with relief lant's evidence, and it is as follows: "Wherefrom valuation and appraisement laws, but as, George F. Kreitlein, in said district, has without exemption, and costs herein expend- been duly adjudged a bankrupt under the ed, taxed at $ -" Charles Ferger testi- acts of Congress relating to bankruptcy, and fied on direct examination: "I own the above appears to have conformed to all requirejudgment, and it has never been paid." On ments of law in that behalf, it is therefore cross-examination, he said, "I did not know ordered by this court that said George F. that Mr. Kreitlein went through bankruptcy Kreitlein be discharged from all debts and until lately, and did not get any notice of it." claims which are made provable by said acts The defendant introduced in evidence the against his estate, and which existed on the record of the verdict and answers by the jury 11th day of November, A. D. 1905, on which to interrogatories in the case in which the day the petition for adjudication was filed judgment was rendered, upon which this suit by him, excepting such debts as are by law was brought. There were 25 of these inter- excepted from the operation of a discharge rogatories, the answers to which, important in bankruptcy." This discharge was evidence in determining the question involved in this of the jurisdiction of the court and the regcase, were, in effect, that defendant in that ularity of the proceedings in the bankruptcy case, appellant here, was, on the 4th, 5th, 6th, case and the fact that such order of disand 7th days of November, 1895, insolvent, charge was made therein. Bankruptcy Act and that on said dates he ordered the flour (Act July 1, 1898, c. 541, § 21, c, f, 30 Stat. described in plaintiff's complaint; that said 552 [U. S. Comp. St. 1901, pp. 3430, 3431]); defendant neither in person nor by or through Hays v. Ford, 55 Ind. 52; Begeim v. Brehm, any one representing him, either at the time 123 Ind. 160, 23 N. E. 496; Graber v. Gault, of ordering said flour or prior thereto, made 103 App. Div. 511, 515, 93 N. Y. Supp. 76. any representations to the plaintiff as to defendant's financial condition; that neither the defendant nor any one representing him had at either of said times made any representation to the public generally as to the solvency or insolvency of such defendant; that neither at the time the defendant received said flour nor prior thereto had he or any one representing him made any representations to the plaintiff or to the public generally as to the solvency or insolvency of the defendant which were false; that the plaintiff in receiving the order for said flour and filling the same did not rely upon any statements made to him or to the public generally by the defendant or by any one representing defendant; that the plaintiff in that suit, appellee here, believed that the sale of said flour was a sale for cash, and sent his son to collect for the same, who received from the defendant shoes, the value of which was to be credited upon the, account of plaintiff against defendant; that plaintiff, after the sale of said flour, sent an attorney to defendant, who demanded payment of the account, to whom the defendant made a promise to pay the account within 24 hours, and said attorney, with knowledge of the facts under which the flour was purchased, agreed to wait, and did wait, until the time prom The provisions of the bankruptcy act of 1898, as amended in 1903, applicable to the questions presented by this appeal are as follows: First. Section 17 of said act: "Debts Not Affected by a Discharge.-A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as (3) have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy. * Act Feb. 5, 1903, c. 487, 32 Stat. 798 (U. S. Comp. St. Supp. 1909, p. 1310). Second. Section 63a1. "Debts Which may be Proved.-Debts of the bankrupt may be proved and allowed against his estate which are: (1) Fixed Liability. A fixed liability, as evidenced by a judgment or an instrument in writing, absolutely owing at the time of the filing of the petition against him, whether then payable or not, with any interest thereon which would have been recoverable at that date or with a rebate of interest upon such as were not then payable and did not bear interest." Third. That part of subdivision 8 of sec tion 7 which provides that the bankrupt shall "prepare, make oath to, and file in court itors, showing their residences, if known; |itor had actual knowledge of the proceeding if unknown, that fact to be stated, the amounts due each of them, the consideration thereof, the security held by them, if any, and a claim for such exemptions as he may be entitled to." in bankruptcy," and subdivision 8 of section 7 of said act, supra, provides that such bankrupt in his said list of creditors "shall show their residences, if known; if unknown, that fact to be stated." There can be no quesOther sections provide for notices to be tion under any of the authorities construing given to the creditors of the bankrupt of cer- said provisions but that it was at least nectain steps to be taken in such proceedings, essary that such schedule should contain the the notices to be sent by the referee in bank-name of such creditor, or that such creditor ruptcy by mail to the "respective addresses" should have actual knowledge of the proof such creditors "as they appear in the list ceedings, before it could be said that a disof creditors of the bankrupt, or as after-charge under such act would be a release as wards filed with the papers in the case by the creditors, unless they waive notice in writing." See section 58 and also section 39, subd. 4. to such creditor. Marshall v. English-Amer., etc., Co., 127 Ga. 376, 56 S. E. 449; Custard v. Wigderson, 130 Wis. 412, 110 N. W. 263, 10 Ann. Cas. 740; Columbia Bank v. Birkett, 174 N. Y. 112, 66 N. E. 652, 102 Am. St. Rep. 478. In this state the initial of the given name, alone and unexplained, is not recog In addition to the above is a general order No. 5, which provides "that all of the schedules shall be printed or written out plainly without abbreviation or interlinea-nized as a name. Bascom v. Toner, 5 Ind. tion, except when such abbreviation or interlineation may be for the purpose of reference." It will be seen from these provisions that a discharge in bankruptcy does not operate as a discharge of all the debts of such bankrupt, but that he shall be released from all of his provable debts, except those therein specially provided. The debt herein sued upon was a judgment, and under section 63a1 above was a provable debt. App. 229, 31 N. E. 856; Shearer v. Peale & Co., 9 Ind. App. 282-286, 36 N. E. 455; Louden v. Walpole, 1 Ind. 319. The other section providing that the schedule should also contain the residences of such creditors, not being a part of the section providing the debts to be affected by the discharge and the exceptions therefrom, there is ground for holding that such statement of the residence is not a condition, the performance of which is necessary to prevent the operation of the discharge, and our attention is called to the case of Steele v. Thalheimer, 74 Ark. 518, 86 S. W. 305, which so holds. There are other cases, however, holding to the contrary. Columbia Bank v. Birkett, 174 N. Y. 112, 66 N. E. 652, 102 Am. St. Rep. 478; Haack v. Theise, 51 Misc. Rep. 3, 99 N. Y. Supp. 905. The purpose of this provision is manifest. The law of 1898 is different from the bankruptcy laws of 1841 and 1867 (Act March 2, 1867, c. 176, 14 Stat. 517), in the matter of the manner and kind of notice to be given the creditors of such bankrupt. The law of 1898 provides for individual notices of the proceedings in bankruptcy to be given to each of said creditors by mail, and the purpose of requiring the bankrupt to furnish the names and residences of his creditors is that the referee may have the information nec It is insisted by appellant that the burden of proof is upon the appellee to prove that the debt sued upon was included in any of the classes excepted from the discharge. Upon this question there is some conflict in the authorities, both in our own state and in other jurisdictions. Under the bankruptcy law of 1841 (Act Aug. 19, 1841, c. 9, 5 Stat. 440), our Supreme Court, in the case or Sorden v. Gatewood, 1 Ind. 107, expressly held that the burden of proof in such a case is upon the bankrupt who pleads and relies upon his discharge. This case has never been expressly overruled, and has been cited in the following cases: Bivens v. Newcomb, 2 Ind. 98; Slaughter v. Detiney, 10 Ind. 105; Donald v. Kell, 111 Ind. 1-4, 11 N. E. 782; Madison Township v. Dunkle, 114 Ind. 265, 16 N. E. 593. In this connection, it is proper to say that, while the case of Sorden v. Gatewood has never been expressly over-essary to give such notices. These notices ruled by our Supreme Court, some doubt has been cast upon it as an authority upon this particular question by the later case of Goddin v. Neal, 99 Ind. 334. In view, however, of our conclusion upon the other questions presented by the appeal, we do not deem it important or necessary in this case to determine upon whom rested the burden of proof as to said question. [1] Under the provision of section 17 (3), supra, the discharge in bankruptcy did not affect such debts of the bankrupt as had not been "duly scheduled" in time for proof and allowance with the name of the creditor, if known to the bankrupt, "unless such cred are important, and it is necessary that the bankrupt be as accurate and certain as he can be in the furnishing of said information, in order that the provisions for the personal notice to the individual creditors required by the act be complied with. If he withholds or for any reason fails to accurately and correctly perform this duty required by the statute, the provision of such notice may be thereby defeated. "One of the fundamental principles in the jurisprudence of this country is that no man can be deprived of any legal right by a judicial proceeding to which he is not a party, and of which he has not received lawful notice or had actual knowledge." In re Monroe (D. C.) 114 Fed. | judgment for tort, rendered some In the case of Columbia Bank v. Birkett, Upon the question of the sufficiency of the statement in the schedule of the residence or address of the creditors where they reside in large cities, see Haack v. Theise, 51 Misc. Rep. 3, 99 N. Y. Supp. 905; Cagliostro v. Indelli, 53 Misc. Rep. 44, 102 N. Y. Supp. 918. [2] As a matter of fact, the proof shows that the information furnished in his sched seven years before said debt on said schedule was so listed. There is no proof that in any way connects the two debts as one and the same debt, unless it could be said that said answers to interrogatories furnish such proof, and we fail to see wherein they can be said to identify the two debts as one and the same debt. See Louden v. Walpole, 1 Ind. 319. [3, 4] Appellant next insists that the motion for new trial should be granted, because the court in rendering the judgment herein rendered a judgment with benefit of exemption, and without relief; whereas the judgment upon which the suit was predicated was with relief and without exemption. The judgment in this respect was wrong; but no objections were made or exceptions taken by appellant to the form of the judgment, and no motion was made to modify the same. Appellant insists that his motion for new trial presents the question, and relies upon the case of Jarboe et al. v. Brown, 39 Ind. 549, and the case of Polly v. Pogue, 38 Ind. App. 678, 78 N. E. 1051. We do not think either of the cases cited support appellant's contention. This court, in 38 Ind. App. 678, 78 N. E. 1051, expressly bases its decision upon the fact that the facts found by the court made it necessary that the judgment should be rendered in that case as it was, and says: "The finding in such respect is contrary to law, as well as contrary to the evidence, and good cause arises therefrom for a new trial." In 39 Ind. 549, there were reasons shown in the opinion for reversing the judgment in that case, other than that a part of the same was rendered without relief. All of the more recent authorities hold that to save a question as to the form of the judgment some objection and exception must be made and saved at the time it is rendered, or a motion made to modify or correct. Allen v. Studebaker, etc., Co., 152 Ind. 406, 53 N. E. 422; Tucker v. Hyatt, 151 Ind. 332338, 51 N. E. 469, 44 L. R. A. 129; Stalcup V. Dixon, 136 Ind. 9-19, 35 N. E. 987; Kelley v. Houts, 30 Ind. App. 474-477, 66 N. E. 408; Johnson v. Prine, 55 Ind. 351; Lewis V. Edwards, 44 Ind. 333; Elliott, App. Pro. $8_345, 346. ule by appellant did not result in appel- Judgment affirmed. (51 Ind. App. 392) CLEVELAND, C., C. & ST. L. RY. CO. et al v. CLARK. (No. 7,255.) 1 (Appellate Court of Indiana, Division No. 2. March 8, 1912.) RAILROADS (§ 303*)-CROSSINGS-RESTORATION AND MAINTENANCE-NEGLIGENCE. posing on railroad companies the duty of restoring and maintaining highway crossings in such a way as to be reasonably safe for travel, Under Burns' Ann. St. 1908, § 5195, im For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexe |