Bahar v. Tadros, 29180
| Decision Date | 21 December 1954 |
| Docket Number | No. 29180,29180 |
| Citation | 234 Ind. 302,123 N.E.2d 189 |
| Parties | Jacob BAHAR and Mary Bahar, Appellants, v. Sam TADROS, also known as Sam Dadrus, and Theresa Tadros, also known as Theresa Dadrus, Ernest Meyer, Commissioner, First National Bank of Michigan City, Indiana, Trustee, William N. Kenefick and Paul F. Jackson, Appellees. |
| Court | Indiana Supreme Court |
George A. Pawloski, Michigan City, James P. Gleason, Michigan City, for appellants.
F. Kenneth Dempsey, South Bend, William N. Kenefick, Paul F. Jackson, Michigan City, for appellees.
On March 13, 1954, appellants recovered a judgment against appellee, Sam Tadros, for $17,000 and costs, without relief and the foreclosure of their equitable mortgage against the appellees on real estate in LaPorte County, Indiana, as follows:
Lot No. One (1) in Block No. One (1) in Donnelly's Addition to the city of Michigan City.
And for the sale of said real estate by the sheriff of the county, and the distribution of the proceeds: 1st. To the payment of costs accrued and the costs of sale; 2nd. To the payment of the judgment together with interest thereon. The overplus, if any, to be paid to the clerk of the court for the use of the parties lawfully entitled to receive the same. Any deficiency to be levied of the goods, chattels, lands and tenements of appellee, Sam Tadros, subject to execution, sale to be without relief from valuation or appraisement laws.
Upon sale, sheriff was ordered to evict all the appellees and put the purchaser in possession of the premises.
It was further adjudged that appellee, First National Bank of Michigan City, Indiana, Trustee, take nothing by its cross-complaint.
This judgment is a final judgment with the presumptions in its favor as provided by law. From such judgment an appeal will lie.
On March 20, 1954, seven days after the final judgment was rendered appellants filed their verified application for the appointment of a receiver 'To Secure Rents Collected,' in which it is averred:
'That during the pendency of this action the defendant, First National Bank of Michigan City, Indiana, Trustee, has collected rent from said premises in the sum of approximately Two Thousand Two Hundred Fifty-five and no/100 Dollars ($2255.00).
'It is also averred that the court had ordered sale of the real estate afore described 'to satisfy a judgment against the defendant, Sam Tadros also known as Sam Dadrus, in the sum of nineteen Thousand Seven Hundred Sixty ($19760.00) Dollars, plus interest and court costs.' 'That the sale will not bring sufficient money to satisfy the debt.'
'The prayer is in the alternative, that a receiver be appointed to take charge of the rents so collected by said bank as trustee, 'or in the alternative to order said defendant, First National Bank of Michigan City, Indiana, Trustee, to pay all rents collected over, to the Clerk of this court, or the sheriff of the county to apply on said judgment' and all proper relief.'
After considerable delay the matter was finally heard by the court on May 8, 1954, and the material part of the record made thereon, is as follows:
'The court having heard the evidence, and the argument of counsel, now denies said application.'
From this action an appeal is taken, treating it as an interlocutory order in the original suit to foreclose the mortgage. The record was filed in this court on June 17, 1954, forty-one days after the order complained of was made. The appeal was not taken under Burns' 1946 Repl. Sec. 3-2603.
Our first question: Is this an interlocutory order? If so, and the subject of the order is within the authority granted by Sec. 2-3218, Burns' 1946 Repl. the appeal is properly taken to this court. Secs. 2-3218 to 2-3222 inclusive, Burns' 1946 Repl. We have heretofore held that:
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...Union Tel. Co. v. Locke (1886) 107 Ind. 9, 11, 7 N.E. 579.' Cirtin v. Cirtin, supra, has been cited with approval in Bahar v. Tadros (1954), 234 Ind. 302, 123 N.E.2d 189; Haag v. Haag (1959), 240 Ind. 291, 163 N.E.2d 243; and, significantly, Bahre v. Bahre, Since no final judgment has been ......
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