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which was 36 days beyond the time allowed, by paying the judgment and thereby acknowl. for taking an appeal. On April 14th appel- edging its validity. lee the Newton Bank filed a confession of Appellant in his application to amend his error, and on May 1, 1916, appellee Keller briefs says the demurrer, memoranda, ruling filed his motion to dismiss the appeal. On of the court, and exceptions thereto were inMay 4, 1916, appellant by written motion, advertently omitted in the preparation of asked leave to amend his original briefs, ap- his briefs; that he was not aware of their parently to obviate the grounds of the mo- omission until his attention was called theretion to dismiss. The motion to dismiss al- to by appellee's motion and briefs to disleges that: (1) No question is presented by miss the appeal; that the omitted matter is the record and briefs of appellant; and (2) shown by the record, and is material and that appellant has recognized the validity of necessary to the presentation of the error in the judgment from which the appeal is prose- overruling the demurrer; and he asks that cuted.

he now be permitted to supply. it by so The suit was brought by appellant, as re- amending his briefs as to include the same. ceiver of the Columbia Casualty Company, to [1] Within the time allowed or granted by replevin two certificates of bank deposits the court for the filing of briefs, an appellant from appellee the Newton Bank, each calling will be permitted to file amended briefs, or for $245, and numbered, respectively, 810 to make any reasonable amendments to those and 841. By intervening petitions appellee he may have placed on ile before the expiraKeller and one W. E. Richards were admit- tion of such time, but in either instance he ted as parties to the suit, and each set up his should give notice to the opposite party and claim to ownership of one of the certificates. obtain leave of the court. If the time allowed The bank made no claim of ownership, but or granted for the filing of briefs has exasserted a right of set-off against the Co-pired, and the appellant thereafter seeks to lumbia Casualty Company.

amend his briefs, he may in certain continVarious issues were joined on the complaint, gencies obtain leave of court to do so. If the and on a cross-complaint by appellee Keller. briefs he has filed show substantial compliOn trial of the issues the court found that ance with the rules and duly present some appellee Keller was the owner and entitled question or questions, on proper showing, aftco possession of certificate 841; that Rich- er notice to the opposite party, the court will ards had no right, title, or interest in or to permit any reasonable amendment of the either of the certificates; that appellee the briefs necessary to fully present the merits Newton Bank was entitled to certificate 840; of the appeal, subject to such orders as to the that appellee Keller should have return of payment of costs as the court may deem just his certificate and judgment against the bank and equitable, and the court usually taxes for the amount thereof and accrued interest. the costs occasioned by such amendment to The judgment was in accord with the find the party making the same. If the briefs ings.

filed by the appellant, when fairly and libThe errors assigned are: (1) The overrul-erally construed, under the rules of the court, ing of appellant's demurrer to the second fail to duly present any question relating to paragraph of the reply of appellee Keller; the merits of the appeal, he will not be perand (2) the overruling of appellant's motion mitted to amend the same after the time for for a new trial. Other attempted assign- filing his briefs and also the time for taking ments are shown, but they consist simply of an appeal has expired, “except in cases where statements in different form of the second al- the excuse or reason for the necessity of the leged error and of grounds for a new trial amendment resulted from the acts or conduct which cannot be assigned as independent er- of appellee, or from some cause for which apror.

pellant was in no way to blame." Appellee in his motion to dismiss alleges: [2, 3] Our examination of appellant's briefs (1) That no questions are presented because and the motions convince us that appellant of failure to comply with clause 5 of rule has wholly failed to present any question un22 of this court (55 N. E. vi), in this, that der the rules promulgated and enforced by appellant has not set out in his briefs the our Supreme Court and by this court. Appeldemurrer or the memorandum accompanying lee has made a timely presentation of his the same on which he seeks to predicate er motion to dismiss and is asserting his right ror; also, that in his points and authorities, to an enforcement of the rules by a dismissal under the second assignment of error, ap- of the appeal or an affirmance of the judgpellant has only stated general abstract prop- ment. The record and the briefs support ositions of law, and has in no way indicated appellee in his contentions. The rules of the their relation or application to any question court have the force and effect of law, bindarising on the motion for a new trial. (2) ing alike upon litigants and the court. When That the evidence has not been brought upon a party duly asserts a right under the rules appeal, and no question relating to or de and shows himself clearly entitled thereto, pending upon the evidence can be considered. it becomes the duty of the court to grant him (3) Appellant has settled the controversy be the relief to which he is entitled. We there

sented, and that appellant on the showing party defendant, and he thereupon filed a made in the case should not now be permit- pleading, designated as an intervening petited to amend his briefs as prayed. For this tion, by which he alleged facts to the effect reason it is not necessary to consider the that he was the owner of a stock of goods question of the effect of the alleged settle and certain personal property, of which ment with appellee the Newton Bank. As Masters, as receiver, had taken possession supporting our conclusion on the several as the property of Trapschuh. The issues points involved we cite the following: Steel formed on the intervening petition were tried v. Yoder, 58 Ind. App. 633–635, 108 N. E. 783; by the court. The finding was for Lux, and German Fire Ins. Co. v. Zonker, 57 Ind. App. that he was the owner of the property de696, 701, 703, 108 N. E. 160; Palmer v. Beall, scribed in his petition, and that he was en110 N, E. 218; Harrold v. Whistler, 111 N. E. titled to possession thereof. The judgment 79; Kaufman V. Alexander, 180 Ind. 670 follows the finding and includes an order 672, 103 N. E. 481; Chicago, etc., R. Co. v. that the receiver deliver the possession of the Dinius, 180 Ind. 596-627, 103 N. E. 652; property to Lux, From such judgment, apHinton v. Falls City, etc., Ass'n, 111 N. E. pellant appeals, assigning the overruling of 20; · Continental Nat. Bank v. McClure, 111 the motion for a new trial as the sole error. N. E. 191; Goodman v. Bauer, 111 N. E. The motion for a new trial is to the effect 315; Beard v. Hosier, 58 Ind. App. 14, 107 that thereby appellant moved the court “to N. E. 558.

grant a new trial as from the finding and Appeal dismissed.

judgment rendered,

which judg. ment and order directed" the receiver to de

liver the property, etc.; the grounds of the (63 Ind. App. 120)

motion being as follows: (1) That said INDIANAPOLIS ELECTRIC SUPPLY CO. v. judgment and order rendered by the court TRAPSCHUH et al. (No. 9209.)

aforesaid are contrary to law; (2) that the (Appellate Court of Indiana, Division No.

said judgment and order rendered by the Nov. 24, 1916.)

court were not sustained by sufficient eviAPPEAL AND ERROR Om 302(6) MOTION FOR dence; (3) that the judgment rendered and NEW TRIAL-SUFFICIENCY="DECISION.".

No question is presented on appeal after order made by the court on the 11th day of denial of motion for new trial on the ground December, 1914, were contrary to the law that the judgment and order rendered were not and the evidence. sustained by sufficient evidence and were con

The statutory cause for a new trial to trary to law, since Burns' Ann. St. 1914, § 585, subd. 6, authorizes such motion for new trial which appellant evidently intends to appeal only on the ground that the decision is not sus is the sixth subdivision of section 585, tained by sufficient evidence or is contrary to Burns 1914. So much of that subsection as law; "decision” referring to “finding” where is applicable where the trial is by the court the trial is without a jury.

[Ed. Note.--For other cases, see Appeal and without a jury is as follows: “That the Error, Cent. Dig. 88 1749–1752; Dec. Dig. Om

decision is not sustained by suf302(6).

ficient evidence, or is contrary to law.” The For other definitions, see Words and Phrases, word “decision,” as used in such section, has First and Second Series, Decision.]

reference to the finding where the trial is Appeal from Superior Court, Marion Coun- by the court. Gates v. Baltimore, etc., Co. ty; T. J. Moll, Judge.

154 Ind. 338, 56 N. E. 722; Hillel v. BuettAction by the Indianapolis Electric Supply ner, etc., Co., 113 N. E. 12. Company against Charles J. Trapschuh, do It will be observed that by neither assigned ing business as the Trapschuh Electric Light cause for a new trial does appellant chaling & Fixture Company, wherein J. Fred lenge the decision or the finding of the Masters was appointed receiver for defend-court. The causes in each case are directed ant, and Nicholas J. Lux, being made defend against the judgment, and the order, which ant, filed an intervening petition. From the in this cause is a part of, the judgment. judgment in favor of Lus, plaintiff appeals. “It may be that, upon verdicts or findings in Affirmed.

strict accord with the law and evidence, judgH. C. Shaw, of Indianapolis, for appellant. dered. But the remedy against such errors is

ments contrary to the law and evidence are renRoby & Salsbury and Little & Little, all of a motion to modify the judgment, and not a Indianapolis, for appellees.

motion for a new trial.” Lynch v. Milwaukee,

etc., Co., 159 Ind. 675, 65 N. E. 1025. CALDWELL, C. J. Appellant commenced A long line of decisions requires us to this action against appellee Trapschuh, doing hold that no question is presented for our business as the Trapschuh Lighting Fixture consideration. In addition to the decisions Company, to recover on certain promissory above cited, see the following, some of which notes and accounts. On appellant's applica- illustrate the spirit of liberality exercised by tion, appellee J. Fred Masters was appointed the courts in an effort to hold sufficient causreceiver of the personal property and assets es irregularly assigned: Rodefer v. Fletcher, of Trapschuh. Subsequently, by order of 89 Ind. 563; Hall v. McDonald, 171 Ind. 9, court, appellee Nicholas J. Lux was made a 85 N. E. 707; Indiana, etc., Co. V. Cauldwell,

For other cases seo same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

59 Ind. App. 513, 107 N. E. 705; Johnson v. officer of the court, exercising his functions for Allispaugh, 58 Ind. App. 63, 107 N. E. 686; the common benefits of all parties in interest. Hillel v. Buettner, etc., Co., supra.

[Ed. Note.-For other cases, see Corporations,

Cent. Dig. 88 2255, 2262; Dec. Dig. 560(2).) Judgment affirmed.


The receiver of an insolvent corporation is (63 Ind. App. 101)

the proper party to bring any action which the MARCOVICH v. O'BRIEN, State Auditor, corporation might have brought, and as trustee et al. (No. 9286.)

for the creditors can maintain actions which the

corporation could not. (Appellate Court of Indiana, Division No. 1. (Ed. Note.-For other cases, see Corporations, Nov. 22, 1916.)

Cent. Dig. 88 2258, 2262; Dec. Dig. cw560(7).) 1. CORPORATIONS 202 STOCKHOLDERS


RECEIVERS–PARTIES. Generally speaking, the stockholders of a In the absence of a showing of a refusal of corporation, for the purposes of all litigation the receiver of an insolvent corporation to probetween the corporation and a third person, sur

tect and preserve its assets for the benefit of render their personal or individual entity to those entitled thereto, or some showing of colthe corporation, and it is only in exceptional lusion or fraud on his part, a stockholder is cases that the stockholders will be permitted to not entitled to be made a party to the receiversue or defend a suit for and on behalf of them- ship proceedings, under Burns Ann. St. 1914, selves as stockholders of the corporation,

$ 273, providing that when a complete deter[Ed. Note: --For other cases, see Corporations, mination of the controversy cannot be had Cent. Dig. 88 777–780, 822; Dec. Dig. Em 202.) without the presence of other parties, the court

must cause them to be joined as proper parties. 2. CORPORATIONS Cw204 STOCKHOLDERS

[Ed. Note.--For other cases, see Corporations, SUING OR DEFENDING ACTIONS.GROUNDS. Cent. Dig. $8 2176, 2177; Dec. Dig. Om546.)

Corporate stockholders are permitted to sue or defend actions between the corporation and 9. CORPORATIONS 546 INSOLVENCY AND third persons only in case of some action, or RECEIVERS-PARTIES. threatened action, by directors or trustees be The trial court in its discretion might, in yond their powers, a fraudulent transaction certain cases, admit a stockholder to intervene completed or contemplated by the acting man- in receivership proceedings, though its refusal agers, causing injury to the corporation or to do so would not constitute reversible error. stockholders, action by directors in their own (Ed. Note.-For other cases, see Corporations, interest, and in a manner destructive of the Cent. Dig. 88 2176, 2177 ; Dec. Dig. 546.) corporation, or the rights of the other stockholders, or where a majority of the stock. 10. CORPORATIONS W546–INSOLVENCY AND holders are illegally or oppressively pursuing a

RECEIVERS-ACTIONS. course, in the name of the corporation, which

A stockholder is properly refused permisis in violation of the right of the other stock sion to bring suits affecting the interests of the holders, and can only be restrained by a court corporation, in the absence of showing that the of equity.

receiver had ever been asked to bring the suits, (Ed. Note.-- For other cases, see Corporations, or had refused to bring them or to obtain necesCent. Dig. 8783–790; Dec. Dig. 204.) sary orders and directions of the court in refer

ence thereto. 3. CORPORATIONS Om 206(5)-STOCKHOLDERS [Ed. Note.-For other cases, see Corporations,

SUING OR DEFENDING ACTIONS CONDI• Cent. Dig. 88 2176, 2177; Dec. Dig. Om546.]
Before stockholders sue or defend on behall

Appeal from Superior Court, Lake County; of a corporation, it is ordinarily necessary show a demand on the board of directors to Virgil S. Reiter, Judge. bring suit, and a refusal on their part, but the Proceeding by William F. O'Brien, Audi. law does not require a demand that would be tor of the State, and another, for the appointunavailing; as when the corporation is under ment of a receiver of the Indiana Trust & the control of the wrongdoers. (Ed. Note.-For other cases, see Corporations,

Savings Bank. From a judgment striking Cent. Dig. 88 794, 796; Dec. Dig. 206(5).] out the petition of Wolf Marcovich for per4. CORPORATIONS Om 546 – RECEIVERS - Ac mission to intervene, he appeals. Affirmed. TIONS. The rules, governing stockholders in bring

W. J. Murray, of Indiana Harbor, and ing actions originally, apply where the corpora- John M. Stinson, of Hammond, for appeltion is insolvent, and its affairs are being man- lant. L. V. Cravens, of Hammond, for apaged and settled through a receiver appointed pellees. by and acting under the direction of the court.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. $$ 2176, 2177; Dec. Dig. 546.j

HOTTEL, P. J. The facts disclosed by the 5. CORPORATIONS Om560(4)-INSOLVENCY AND

record herein, necessary to an understanding RECEIVERS-PROPERTY AS TJUST FUND. of the questions presented by this appeal,

When a court has taken possession of an are, in substance, as follows: insolvent corporation for administration, and

Prior to and on October 29, 1913, the “Indiappointed a receiver, the property is a trust fund for the payment of its debts.

ana Trust and Savings Bank," hereinafter [Ed. Note.-For other cases, see Corporations, referred to as the “insolvent bank," was a Cent. Dig. $ 2262; Dec. Dig. 560(4).] corporation engaged in the business of a 6. CORPORATIONS Om560(2) INSOLVENCY loan and trust company in the City of Indi. AND RECEIVERS-REPRESENTATION OF PAB-ana Harbor. On said day the auditor of

A receiver of an insolvent corporation is state caused an examination of said bank, not the agent or representative of either party and found it to be in an insolvent and failing to the action, but is uniformly regarded as an condition. Thereupon an agreement was



made between such auditor, the "Citizens' After the filing of these claims, to wit, on Trust & Savings Bank," the "Indiana Har- July, 2, 1914, the record shows the filing of bor National Bank," the "First National other claims, and proceeds as follows: Bank of East Chicago," and the "First Calu "Comes also [naming the various claimants, met Trust & Savings Bank,” whereby said the banks above named, the former receiver, and banks were to advance money as needed to the present receiver), and cones also Wolf

Marcovich, another of said stockholders, and pay the debts and depositors of the insolvent comes also the Indiana Securities Company." bank, and to that end such Citizens' Trust “The receiver herein now files his verified pe& Savings Bank was to be appointed liquidat- tition for leave to compromise and adjust cering agent and, by said agreement, was author- tain claims, and for the disposition of other

matters shown in said petition, which petition ized, as such agent, to borrow from either or is in these words, to wit." any of said banks which entered into said agreement the money necessary for the pay

This petition alleges, among other things, ment of the creditors and depositors of such that the cause of the claimant banks had insolvent bank, and give to the bank so loan- been under inquiry for seven days, during ing money for such purposes a note or notes which time evidence had been heard, "entherefor, which notes should be the obliga- lightening the receiver and the court on all tion of the insolvent bank, and bear 7 per tition"; that both before and at the trial

subjects hereinafter rcommended in this pecent. interest, payable semiannually, the assets of the insolvent bank to be held in trust the receiver and his attorney had “investiby such liquidating agent for the payment of gated as carefully as possible the question of

fact involved in the various matters hereinthe notes. It seems that this arrangement had the sanction of a petition of the stock after referred to; that this receiver has as

certained after a conference with the parholders, purporting to be signed by persons ties whose interests would be concerned ; that representing more than 80 per cent. of the

a compromise and adjustment can be made of stock of such insolvent corporation. Said

all subjects hereinafter referred to on the agent undertook and proceeded for a time basis of the recommendation contained herewith the discharge of its duties as liquidat

in, to wit." ing agent, when the legality of many of its

Then follows recommendation of the allowacts was questioned by some of the stock

ance of the claims of said banks in specified holders and creditors and such liquidating amounts aggregating $58,913.39; that such bank, and the other banks above named peti- claimants be subrogated to the rights of the tioned for the appointment of a receiver for depositors of such insolvent bank; that all such insolvent bank. A receiver was appoint costs and expenses of the action heretofore ed, whereupon appellant and another stock by the claimant banks against the Indiana holder filed their petition, asking to be made Trust & Savings Bank, resulting in the apparties defendant to the petition of said pointment of H. C. Rutledge, receiver, be banks, and were admitted as parties defend-borne by said claimant banks; that the reant thereto, and thereupon filed a demurrer port of the Citizens' Trust & Savings Bank to said petition, which demurrer was sus

as liquidating agent should be approved, tained by the court. Thereupon appellee with the exception of certain enumerated William H. O'Brien, auditor of state, filed items, which should be disallowed; that no his petition in the Lake Superior court, ask- fees for the liquidating agent's services, or ing for the appointment of a receiver for the services of its attorneys, should be allowsaid insolvent bank, and after due notice ed; that the report of said Rutledge, receivof such petition had been properly given, er, in said other case be approved, except such court, by the agreement of the parties, that no charge for his services, or that of appointed William Wright, and fixed his bond his attorney, should be allowed. There are at $150,000. Wright duly qualified and pro- other provisions which we need not set out. ceeded with the duties of such receivership, Over the separate and several objections whereupon said banks which had furnished of the receiver and each of the said claimmoney to pay the creditors and depositors of ant banks, appellant, Marcovich, was permitthe insolvent bank, under the agreement above ted by the court to file objections to the alindicated, filed their respective claims against lowance and compromise of the claims of such' receiver, in which each of such claim- such banks. The record shows that such obants, in its claim, set out in detail the agree-jections were overruled by the court, and ment above indicated, and alleged that pur- exceptions saved by Marcovich, and an apsuant thereto it had furnished money to such peal from such ruling prayed and granted, liquidating agent, which had been used to bond fixed and security named and approved, pay creditors and depositors of said insolvent and that the court, “having examined said bank, and had taken notes therefor, properly petition of the receiver, and having heard signed by such liquidating agent, which were the evidence upon the matters petitioned for filed with and made part of such claim, and therein, and being fully advised in the premasked to be subrogated to the rights of the ises, now grants said petition.” depositors of said insolvent bank, and to Then follows the judgment that the petibave its claims take the priority of such tion of the receiver be granted, setting out depositors.

the several provisions thereof before indicat

ed. Following this entry is an entry of Jan-, straighten out its affairs; that the last er. uary 6, 1915, reciting that appellant, by amination made by the bank examiners of counsel, files herein an intervening petition, said insolvent bank showed the bank in a which is set out. This petition alleges the better condition than it had been in for some filing of the claims by said banks, and that time past; that no complaints were received upon a hearing thereof “an agreement was from any source by the state department in reached by the parties appearing in said ac- reference to said insolvent bank, and yet dition which was approved by the court and rectors of competing banks were called to entered upon the record as the order of the Plymouth, Ind., for the purpose of fixing the court"; that appellant is a stockholder of valuation of the assets of the said bank, and the insolvent bank, being the owner of 10 secret negotiations between the bank exshares of the capital stock thereof, and as aminers and chief bank clerk of the state such liable, under the law, for a stock assess- department and the competitors of said inment equal to the amount of the stock held solvent bank began at that time; that whatby him; that when the assets of the in- ever money has been paid by said claimant solvent bank are exhausted, he will be sued banks was a voluntary contribution, for by the receiver on his stock liability.

which they were fully repaid by the eliminaThe petition then charges that such in- tion of the insolvent bank as one of their solvent bank, through its officers, committed competitors; that the stockholders of said acts contrary to law, in that it made illegal insolvent bank have a cause of action against loans, procured the appointment of the liq. the three claimant banks for damages reuidating agent and the first receiver as above sulting from the actions of said banks in set out, after which this action was begun conspiring to close the doors of the insolvent by appellee and the present receiver, William bank; that appellant has a good meritorious H. Wright, was appointed; that the claims defense against the claims of said banks, of the above-named banks are founded on and, if permitted to intervene, he will make notes given by John R. Farovid, as liquidat- such defense; that after said insolvent bank ing agent for the Indiana Trust & Savings had been declared insolvent, Charles E. FowBank, upon the theory that said banks were ler, president of Indiana Trust & Savings entitled to be subrogated to the rights of de- Bank, purchased from the directors thereof positors of such insolvent bank; that upon the real estate, loan and rental business, and investigation appellant finds that the appoint- the fixtures of said bank for a small sum, a ment of said liquidating agent was not made small part of which he has paid, and the according to law, and that neither said in- balance of which is held by the receiver in solvent bank nor its stockholders ought to be unsecured notes; that such transaction was bound by the acts of such liquidating agent; | illegal, and appellant, if made a party herethat the law requires 80 per cent of the to, will petition the receiver to commence an stockholders to join in a petition for such ap- action to recover back the above-named proppointment, and that less than 50 per cent. erty; that one Cain, a stockholder of said joined in the petition under which said liq. insolvent bank, purchased 50 shares of capuidating agent was appointed; that the In- ital stock of said bank on August 30, 1910, diana Securities Company and the Transyl- and on April 4, 1913, said stock was taken vania Company each voted 50 shares of up by said bank, or some officer thereof, and stock for liquidation, when neither of said eventually paid for out of the funds of said companies were authorized to sign said peti bank without any authority whatever; that tion; that notwithstanding the fact that appellant believes that such transaction was there are $3,000 due the depositors, said brought about by duress, and on account claimants have asked, and have been given, a thereof said Cain is indebted to said bank in 15 per cent. dividend on their claims above the sum of $5,000, and appellant, if allowed referred to; that the valuation of the assets to intervene, will petition the receiver to comof said insolvent bank was made by directors mence an action to recover the same; that the of banks which were competitors and claim- Indiana Securites Company borrowed from ants against said insolvent bank; that for said insolvent bank $13,000, secured by mortseveral weeks prior to the closing of the gage on a number of lots in Indiana Harbor, doors of said insolvent bank, the officers of which your petitioner believes are worth the three banks referred to supra, which filed considerably less than 50 per cent of the claims against the insolvent bank, were hold- amount for which they were mortgaged, and ing secret meetings at the First Calumet Trust said security company is not keeping up the & Savings Bank, with the bank examiners and taxes and assessments upon said premises, banking clerk of the state department, de- and your petitioner believes that a receiver vising ways and means of closing up and should be appointed for said security comwin up the affairs of the insolvent bank, pany for the protection of the interests of which meetings were held without the knowl- said insolvent bank, and if made a party deedge or consent of the officers of the insolvent fendant will petition this receiver to combank, contrary to law and against public pol- mence such action; that this insolvent bank, icy; that the stockholders of the insolvent by its officers, loaned large sums of money bank had no knowledge of its affairs or con- to irresponsible persons on unsecured notes

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