which was 36 days beyond the time allowed by paying the judgment and thereby acknowlfor taking an appeal. On April 14th appel- edging its validity. lee the Newton Bank filed a confession of error, and on May 1, 1916, appellee Keller filed his motion to dismiss the appeal. On May 4, 1916, appellant by written motion, asked leave to amend his original briefs, apparently to obviate the grounds of the motion to dismiss. The motion to dismiss alleges that: (1) No question is presented by the record and briefs of appellant; and (2) that appellant has recognized the validity of the judgment from which the appeal is prosecuted.

Appellant in his application to amend his briefs says the demurrer, memoranda, ruling of the court, and exceptions thereto were inadvertently omitted in the preparation of his briefs; that he was not aware of their omission until his attention was called thereto by appellee's motion and briefs to dismiss the appeal; that the omitted matter is shown by the record, and is material and necessary to the presentation of the error in overruling the demurrer; and he asks that he now be permitted to supply. it by so amending his briefs as to include the same.

[1] Within the time allowed or granted by the court for the filing of briefs, an appellant will be permitted to file amended briefs, or to make any reasonable amendments to those he may have placed on file before the expiration of such time, but in either instance he should give notice to the opposite party and obtain leave of the court. If the time allowed or granted for the filing of briefs has ex

The suit was brought by appellant, as receiver of the Columbia Casualty Company, to replevin two certificates of bank deposits from appellee the Newton Bank, each calling for $245, and numbered, respectively, 840 and 841. By intervening petitions appellee Keller and one W. E. Richards were admitted as parties to the suit, and each set up his claim to ownership of one of the certificates. The bank made no claim of ownership, but asserted 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, aftto 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 appellant was in no way to blame."

ror.

[2, 3] Our examination of appellant's briefs and the motions convince us that appellant has wholly failed to present any question under the rules promulgated and enforced by our Supreme Court and by this court. Appellee has made a timely presentation of his motion to dismiss and is asserting his right to an enforcement of the rules by a dismissal of the appeal or an affirmance of the judgThe record and the briefs support

Appellee in his motion to dismiss alleges: (1) That no questions are presented because of failure to comply with clause 5 of rule 22 of this court (55 N. E. vi), in this, that appellant has not set out in his briefs the demurrer or the memorandum accompanying the same on which he seeks to predicate error; also, that in his points and authorities, under the second assignment of error, appellant has only stated general abstract prop-ment. 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 reason it is not necessary to consider the question of the effect of the alleged settlement with appellee the Newton Bank. As supporting our conclusion on the several points involved we cite the following: Steel v. Yoder, 58 Ind. App. 633-635, 108 N. E. 783; German Fire Ins. Co. v. Zonker, 57 Ind. App. 696, 701, 703, 108 N. E. 160; Palmer v. Beall, 110 N. E. 218; Harrold v. Whistler, 111 N. E. 79; Kaufman v. Alexander, 180 Ind. 670672, 103 N. E. 481; Chicago, etc., R. Co. v. Dinius, 180 Ind. 596-627, 103 N. E. 652; Hinton v. Falls City, etc., Ass'n, 111 N. E. 20; Continental Nat. Bank v. McClure, 111 N. E. 191; Goodman v. Bauer, 111 N. E. 315; Beard v. Hosier, 58 Ind. App. 14, 107 N. E. 558.

Appeal dismissed.

(63 Ind. App. 120)

INDIANAPOLIS ELECTRIC SUPPLY CO. v.
TRAPSCHUH et al. (No. 9209.)
(Appellate Court of Indiana, Division No. 2.
Nov. 24, 1916.)

APPEAL AND ERROR 302(6) – MOTION FOR
NEW TRIAL-SUFFICIENCY "DECISION."

No question is presented on appeal after denial of motion for new trial on the ground that the judgment and order rendered were not sustained by sufficient evidence and were contrary to law, since Burns' Ann. St. 1914, § 585, subd. 6, authorizes such motion for new trial only on the ground that the decision is not sustained by sufficient evidence or is contrary to law; "decision" referring to "finding" where the trial is without a jury.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1749-1752; Dec. Dig. 302(6).

For other definitions, see Words and Phrases, First and Second Series, Decision.]

tion, by which he alleged facts to the effect
that he was the owner of a stock of goods
and certain personal property, of which
Masters, as receiver, had taken possession
as the property of Trapschuh. The issues
formed on the intervening petition were tried
by the court. The finding was for Lux, and
that he was the owner of the property de-
scribed in his petition, and that he was en-
titled to possession thereof. The judgment
follows the finding and includes an order
that the receiver deliver the possession of the
property to Lux. From such judgment, ap-
pellant appeals, assigning the overruling of
the motion for a new trial as the sole error.
The motion for a new trial is to the effect
that thereby appellant moved the court "to
grant a new trial as from the finding and
judgment rendered, *
* which judg-

ment and order directed" the receiver to de-
liver the property, etc.; the grounds of the
motion being as follows: (1) That said
judgment and order rendered by the court
aforesaid are contrary to law; (2) that the
said judgment and order rendered by the
court were not sustained by sufficient evi-
dence; (3) that the judgment rendered and
order made by the court on the 11th day of
December, 1914, were contrary to the law
and the evidence.

The statutory cause for a new trial to which appellant evidently intends to appeal is the sixth subdivision of section 585, Burns 1914. So much of that subsection as is applicable where the trial is by the court without a jury is as follows: "That the

Appeal from Superior Court, Marion Coun- by the court. Gates v. Baltimore, etc., Co. ty; T. J. Moll, Judge.

Action by the Indianapolis Electric Supply Company against Charles J. Trapschuh, doing business as the Trapschuh Electric Lighting & Fixture Company, wherein J. Fred Masters was appointed receiver for defendant, and Nicholas J. Lux, being made defendant, filed an intervening petition. From the judgment in favor of Lux, plaintiff appeals. Affirmed.

H. C. Shaw, of Indianapolis, for appellant. Roby & Salsbury and Little & Little, all of Indianapolis, for appellees.

154 Ind. 338, 56 N. E. 722; Hillel v. Buettner, etc., Co., 113 N. E. 12.

It will be observed that by neither assigned cause for a new trial does appellant challenge the decision or the finding of the court. The causes in each case are directed against the judgment, and the order, which in this cause is a part of, the judgment.

"It may be that, upon verdicts or findings in strict accord with the law and evidence, judgments contrary to the law and evidence are rendered. But the remedy against such errors is a motion to modify the judgment, and not a 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 see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

59 Ind. App. 513, 107 N. E. 705; Johnson v.
Allispaugh, 58 Ind. App. 63, 107 N. E. 686;
Hillel v. Buettner, etc., Co., supra.
Judgment affirmed.

(63 Ind. App. 101)

MARCOVICH v. O'BRIEN, State Auditor, et al. (No. 9286.)

(Appellate Court of Indiana, Division No. 1. Nov. 22, 1916.)

1. CORPORATIONS 202 STOCKHOLDERS
SUING OR DEFENDING ACTIONS-GROUNDS.
Generally speaking, the stockholders of a
corporation, for the purposes of all litigation
between the corporation and a third person, sur-
render their personal or individual entity to
the corporation. and it is only in exceptional
cases that the stockholders will be permitted to
sue or defend a suit for and on behalf of them-
selves as stockholders of the corporation.
[Ed. Note. For other cases, see Corporations,
Cent. Dig. 88 777-780, 822; Dec. Dig. 202.]

2. CORPORATIONS 204

STOCKHOLDERS

SUING OR DEFENDING ACTIONS-GROUNDS. Corporate stockholders are permitted to sue or defend actions between the corporation and third persons only in case of some action, or threatened action, by directors or trustees beyond their powers, a fraudulent transaction completed or contemplated by the acting managers, causing injury to the corporation or stockholders, action by directors in their own interest, and in a manner destructive of the corporation, or the rights of the other stockholders, or where a majority of the stockholders are illegally or oppressively pursuing a course, in the name of the corporation, which is in violation of the right of the other stockholders, and can only be restrained by a court of equity.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. 88 783-790; Dec. Dig. 204.] 3. CORPORATIONS 206(5)—STOCKHOLDERS— SUING OR DEFENDING ACTIONS TIONS PRECEDENT.

-

CONDI

Before stockholders sue or defend on behalf of a corporation, it is ordinarily necessary to show a demand on the board of directors to bring suit, and a refusal on their part, but the law does not require a demand that would be unavailing; as when the corporation is under the control of the wrongdoers.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 794, 796; Dec. Dig. 206(5).] 4. CORPORATIONS 546 - RECEIVERS · Ac

TIONS.

The rules, governing stockholders in bringing actions originally, apply where the corporation is insolvent, and its affairs are being managed and settled through a receiver appointed by and acting under the direction of the court. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2176, 2177; Dec. Dig. 546.j 5. CORPORATIONS 560(4)-INSOLVENCY AND RECEIVERS PROPERTY AS TRUST FUND.

When a court has taken possession of an insolvent corporation for administration, and appointed a receiver, the property is a trust fund for the payment of its debts.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. 2262; Dec. Dig. 560(4).] 6. CORPORATIONS 560(2) INSOLVENCY AND RECEIVERS REPRESENTATION OF PARTIES.

-

8. CORPORATIONS 546 INSOLVENCY AND RECEIVERS-PARTIES.

In the absence of a showing of a refusal of the receiver of an insolvent corporation to protect and preserve its assets for the benefit of those entitled thereto, or some showing of collusion or fraud on his part, a stockholder is not entitled to be made a party to the receivership proceedings, under Burns' Ann. St. 1914, $273, providing that when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be joined as proper parties. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2176, 2177; Dec. Dig. 546.] 9. CORPORATIONS 546 RECEIVERS-PARTIES.

INSOLVENCY AND

The trial court in its discretion might, in certain cases, admit a stockholder to intervene in receivership proceedings, though its refusal to do so would not constitute reversible error.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2176, 2177; Dec. Dig. 546.] 10. CORPORATIONS 546-INSOLVENCY AND RECEIVERS ACTIONS.

A stockholder is properly refused permission to bring suits affecting the interests of the corporation, in the absence of showing that the receiver had ever been asked to bring the suits, or had refused to bring them or to obtain necessary orders and directions of the court in reference thereto.

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

Appeal from Superior Court, Lake County; Virgil S. Reiter, Judge.

Proceeding by William F. O'Brien, Auditor of the State, and another, for the appointment of a receiver of the Indiana Trust & Savings Bank. From a judgment striking out the petition of Wolf Marcovich for permission to intervene, he appeals. Affirmed. W. J. Murray, of Indiana Harbor, and John M. Stinson, of Hammond, for appellant. L. V. Cravens, of Hammond, for appellees.

HOTTEL, P. J. The facts disclosed by the record herein, necessary to an understanding of the questions presented by this appeal, are, in substance, as follows:

Prior to and on October 29, 1913, the "Indiana Trust and Savings Bank," hereinafter referred to as the "insolvent bank," was a corporation engaged in the business of a loan and trust company in the City of Indiana 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

After the filing of these claims, to wit, on July, 2, 1914, the record shows the filing of other claims, and proceeds as follows:

"Comes also [naming the various claimants, the banks above named, the former receiver, and the present receiver], and comes also Wolf comes also the Indiana Securities Company." Marcovich, another of said stockholders, and "The receiver herein now files his verified petition for leave to compromise and adjust certain claims, and for the disposition of other is in these words, to wit." matters shown in said petition, which petition

This petition alleges, among other things, that the cause of the claimant banks had been under inquiry for seven days, during which time evidence had been heard, "enlightening the receiver and the court on all tition"; that both before and at the trial subjects hereinafter rcommended in this pe the receiver and his attorney had "investigated as carefully as possible the question of

fact involved in the various matters herein

after referred to; that this receiver has asties whose interests would be concerned; that certained after a conference with the para compromise and adjustment can be made of basis of the recommendation contained hereall subjects hereinafter referred to on the in, to wit."

made between such auditor, the "Citizens' Trust & Savings Bank," the "Indiana Harbor National Bank," the "First National Bank of East Chicago," and the "First Calumet Trust & Savings Bank," whereby said banks were to advance money as needed to pay the debts and depositors of the insolvent bank, and to that end such Citizens' Trust & Savings Bank was to be appointed liquidating agent and, by said agreement, was authorized, as such agent, to borrow from either or any of said banks which entered into said agreement the money necessary for the payment of the creditors and depositors of such insolvent bank, and give to the bank so loaning money for such purposes a note or notes therefor, which notes should be the obligation of the insolvent bank, and bear 7 per cent. interest, payable semiannually, the assets of the insolvent bank to be held in trust by such liquidating agent for the payment of the notes. It seems that this arrangement had the sanction of a petition of the stockholders, purporting to be signed by persons representing more than 80 per cent. of the stock of such insolvent corporation. Said agent undertook and proceeded for a time with the discharge of its duties as liquidating agent, when the legality of many of its acts was questioned by some of the stockholders and creditors and such liquidating bank, and the other banks above named petitioned for the appointment of a receiver for such insolvent bank. A receiver was appointed, whereupon appellant and another stockholder filed their petition, asking to be made parties defendant to the petition of said banks, and were admitted as parties defendant thereto, and thereupon filed a demurrer to said petition, which demurrer was sustained by the court. Thereupon appellee William H. O'Brien, auditor of state, filed his petition in the Lake Superior court, asking for the appointment of a receiver for said insolvent bank, and after due notice ed; that the report of said Rutledge, receivof such petition had been properly given, such court, by the agreement of the parties, appointed William Wright, and fixed his bond at $150,000. Wright duly qualified and proceeded with the duties of such receivership, whereupon said banks which had furnished money to pay the creditors and depositors of the insolvent bank, under the agreement above indicated, filed their respective claims against such receiver, in which each of such claimants, in its claim, set out in detail the agreement above indicated, and alleged that pursuant thereto it had furnished money to such liquidating agent, which had been used to pay creditors and depositors of said insolvent bank, and had taken notes therefor, properly signed by such liquidating agent, which were filed with and made part of such claim, and asked to be subrogated to the rights of the depositors of said insolvent bank, and to have its claims take the priority of such depositors.

Then follows recommendation of the allowamounts aggregating $58,913.39; that such ance of the claims of said banks in specified claimants be subrogated to the rights of the depositors of such insolvent bank; that all costs and expenses of the action heretofore by the claimant banks against the Indiana Trust & Savings Bank, resulting in the appointment of H. C. Rutledge, receiver, be borne by said claimant banks; that the report of the Citizens' Trust & Savings Bank as liquidating agent should be approved, with the exception of certain enumerated items, which should be disallowed; that no fees for the liquidating agent's services, or the services of its attorneys, should be allow

er, in said other case be approved, except that no charge for his services, or that of his attorney, should be allowed. There are other provisions which we need not set out.

Over the separate and several objections of the receiver and each of the said claimant banks, appellant, Marcovich, was permitted by the court to file objections to the allowance and compromise of the claims of such banks. The record shows that such objections were overruled by the court, and exceptions saved by Marcovich, and an appeal from such ruling prayed and granted, bond fixed and security named and approved, and that the court, "having examined said petition of the receiver, and having heard the evidence upon the matters petitioned for therein, and being fully advised in the premises, now grants said petition."

Then follows the judgment that the petition of the receiver be granted, setting out the several provisions thereof before indicat

ed. Following this entry is an entry of Jan- | straighten out its affairs; that the last exuary 6, 1915, reciting that appellant, by counsel, files herein an intervening petition, which is set out. This petition alleges the filing of the claims by said banks, and that upon a hearing thereof "an agreement was reached by the parties appearing in said action which was approved by the court and entered upon the record as the order of the court"; that appellant is a stockholder of the insolvent bank, being the owner of 10 shares of the capital stock thereof, and as such liable, under the law, for a stock assessment equal to the amount of the stock held by him; that when the assets of the insolvent bank are exhausted, he will be sued by the receiver on his stock liability.