Barnard v. Kruzan
| Decision Date | 01 February 1943 |
| Docket Number | 27835. |
| Citation | 46 N.E.2d 238,221 Ind. 208 |
| Parties | BARNARD v. KRUZAN et al. |
| Court | Indiana Supreme Court |
Bauer & Kincaide, of Terre Haute, for appellant.
Cooper Royse, Gambill & Crawford and Thomas F O'Mara, all of Terre Haute, for Appellee.
The appellee, George Kruzan, as a taxpayer of the City of Terre Haute, Indiana, filed this action on July 23, 1938, for and on behalf of himself and all other taxpayers similarly situated. The complaint alleged that William S. Rea deceased, by his last will and testament, established a trust fund of $150,000 for the use and benefit of said City, which fund was to be held by the trustee until such time as the fund and its accumulations should amount to the total sum of $300,000, or until such time as the City should have raised and made available a sum which, together with the trust fund, would be sufficient to pay the entire cost of providing for a right of way and the construction of a new sewer system for the City of Terre Haute; and that the bequest also provided that in the event the City of Terre Haute failed to accept said gift within two years, or failed to provide such additional funds, the bequest should be paid over to Rose Polytechnic Institute of Terre Haute, Indiana.
The complaint further alleged that the City had accepted the gift within the two year period; that the City and said Rose Polytechnic Institute each demanded of the trustee that the total amount of the trust funds be paid to it to the exclusion of the other beneficiary; that a portion of the trust consisted of real estate which had never been reduced to cash and a portion thereof consisted of mortgage loans, which had never been collected; that it was impossible to determine whether the total fund amounted to $300,000 without converting the assets into cash; that the plaintiff disagreed with any admission made by the City and its officers to the effect that the total of said fund already amounted to $300,000, and further disagreed with said defendant City in that plaintiff contended that, until the report of the trustee should be approved and the amount of the trustee's compensation determined, the total amount of said fund could not be determined or the distribution thereof be lawfully made.
The complaint also questioned the validity of the condition that the fund be held until it had doubled in amount and also questioned whether the fund did not, therefore, immediately become the property of the City of Terre Haute; and as to whether if the claims of Rose Polytechnic Institute to the fund accrued at the time of its original deposit, it was not now barred by the statute of limitations.
The prayer of the complaint was that the court should construe the said will, determine each of the questions raised, terminate said trust and require the trustee to transfer and pay over said trust fund to said City for the purposes mentioned in said trust.
To this complaint the defendant, Rose Polytechnic Institute, on March 3, 1941, filed answer and also filed a cross-complaint which alleged that the said City had failed to meet the conditions of said trust bequest; that said Rose Polytechnic Institute had made demand on the trustee for said trust fund; and that it was entitled to the payment and transfer of said trust fund by the trustee. The prayer of the corss-complaint was that said trustee be ordered and directed to terminate the trust, make due accounting therefor, and pay to said cross-complainant said trust fund and all additions and accretions thereto.
On March 18, 1941, the appellant, Horace Barnard, filed his petition to intervene in said action as a party plaintiff, alleging that he was a member of the class for whom the action was brought; that since the bringing of the action the said Kruzan had become the City Comptroller of the City of Terre Haute and was no longer the plaintiff on behalf of other taxpayers similarly situated, but should in fact be a defendant to said action; that if said Kruzan should be permitted to be sole plaintiff the case would be compromised and settled to the detriment of all the other taxpayers; that said Kruzan had not prosecuted the action since it was filed and did not intend to prosecute it; that if he should be permitted to continue as the sole plaintiff there would be collusion and fraud, all to the detriment and irreparable injury of said taxpayers.
The plaintiff, Kruzan, filed a motion to strike out the petition to intervene, and the action of the court on this motion is shown by the following entry: 'and the court examines said motion and sustains same, which ruling of the court the said Horace Barnard, the intervener excepts, and the motion to intervene is disallowed, as this suit was brought by the plaintiff George Kruzan on behalf of himself and all other taxpayers similarly situated and petitioner to intervene cannot be harmed.' Thereafter the court entered the following judgment:
'The Court having on April 2, 1941, sustained a motion to strike out petition to intervene and intervening disallowed.
'It is therefore ordered, considered, adjudged and decreed by the Court that the petitioner and intervener, Horace Barnard, take nothing by his petition to intervene herein, to which ruling of the Court said petitioner and intervener at the time excepts.'
From this judgment the appellant has appealed, assigning as error that the court erred in sustaining the motion of the appellee to strike out the petition of the appellant to intervene.
The appellee has filed a motion to dismiss this appeal. The first and third grounds therefor are based on the premise that the complaint was for a declaratory judgment.
Both the complaint and cross-complaint asserted the immediate right to the possession of the trust fund by the two claimants, demanded the termination of the trust and the transfer and payment of the trust fund. This did not constitute an action for a declaratory judgment. It is true that the determination of the rights of the parties under the will was necessary, but the primary purpose of both the complaint and the cross-complaint was to terminate the trust and to obtain the immediate possession of the trust fund.
The second reason assigned for dismissal is that the record shows that the petition of the appellant to intervene was considered and determined on its merits and that since the record does not contain a bill of exceptions showing all of the evidence, the appeal should be dismissed. If the petition had been considered on its merits, the failure to include in the record a bill of exceptions showing the evidence would, at most, entitle the appellee to an affirmance of the judgment, but not to a dismissal of the appeal.
On the error assigned by the appellant he insists that his petition to intervene alleged proper grounds for intervention and that the record affirmatively shows that the petition was not considered on its merits but was struck out without hearing any evidence. We agree...
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