Berman v. Druck
| Citation | 41 N.E.2d 837 |
| Decision Date | 26 May 1942 |
| Docket Number | No. 16757.,16757. |
| Parties | BERMAN et al. v. DRUCK et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Cass Circuit Court; Wm. C. Pentecost, Judge.
Action by Rae Druck against Abe Berman and others for a declaratory judgment as to ownership and title to shares of stock. From a judgment for plaintiff, defendants Abe Berman and Harry Berman appeal.
Affirmed.J. Wilfred Niemiec, of South Bend, and David F. Dockman, of Chicago, Ill., for appellants.
Miller & Miller, of Logansport, for appellees.
DE VOSS, Judge.
The appellee, Rae Druck, filed her amended complaint in the trial court against appellants, Abe Berman and Harry Berman, and appellees, Sarah Czech, Fannie Clyman, The National Bank of Logansport, Indiana, and Abe Berman, as coadministrators of the estate of Samuel O. Berman, deceased. The complaint is in one paragraph and seeks a declaratory judgment as to the ownership and title to 250 shares of capital stock in the Pharos-Tribune Co., an Indiana corporation. The complaint further prays that the National Bank of Logansport, Indiana, and Abe Berman, co-administrators of the estate of Samuel O. Berman, deceased, be ordered and directed to transfer and deliver to appellee, Rae Druck, certificates of stocks of the total amount of 250 shares of the capital stock of said PharosTribune Co. To this complaint the appellees, The National Bank of Logansport and Abe Berman, as co-administrators of the estate of Samuel O. Berman, deceased, filed their answer denying that Rae Druck was the owner of said stock, and further alleging that they did not know who the owner of said stock was. The answer prayed that the court adjudge and determine who is the owner of said stock and order and direct to whom the same should be transferred. Appellee, Fannie Clyman, filed her answer alleging that she neither admits nor denies the allegations in the complaint, but requests the court to require plaintiff to make due proof of the allegations made in the complaint. Appellants, Abe Berman and Harry Berman, filed their joint and several answers to the complaint in general denial. The appellee, Sarah Czech, filed her answer in general denial to the complaint.
Under the issues joined, the cause was submitted to the court for trial without a jury. The court found the facts specially and stated its conclusions of law thereon adverse to appellants, Abe Berman and Harry Berman, and appellees, Sarah Czech, Fannie Clyman and The National Bank of Logansport, Indiana, and Abe Berman, as co-administrators of the estate of Samuel O. Berman, deceased, and in favor of appellee, Rae Druck, declaring her to be the owner of 250 shares of the capital stock of the PharosTribune Co., and that she was entitled to have the same transferred and assignedto her by Abe Berman and The National Bank of Logansport, Indiana, as co-administrators of the estate of Samuel O. Berman, deceased.
Appellants filed their motion for a new trial which was by the court overruled and judgment was rendered for appellee, Rae Druck, consistent with and in accordance with the conclusions of law.
The errors assigned for reversal in this court are:
(1) The Cass Circuit Court erred in overruling appellants' separate and several motions for a new trial.
(2) The Cass Circuit Court erred in its 1st conclusion of law.
(3) The Cass Circuit Court erred in its 2nd conclusion of law.
The only assigned error set out and discussed in appellants' brief under “points and authorities” is the overruling of the motion for a new trial and the specific reasons discussed are:
(1) That each finding and decision of the court is contrary to law.
(2) Error of the court in the admission of certain evidence set out in said motion.
It is contended by appellants that the finding of the court is contrary to law for the reason that proceedings for a declaratory judgment can not be maintained where executory or coercive relief is sought, and it appears from the complaint that appellee was seeking executory and coercive relief.
Section 3-1101 of the Declaratory Judgments Act, Burns 1933, Sec. 438, Baldwins 1934 provides as follows:
It will be noted that the above section provides the court shall have the power to declare rights, status and other legal relations whether or not other relief is or could be claimed.
[1] It is true that the Declaratory Judgments Act limits the subject matter to declaratory judgments and decrees and not for granting executory or coercive relief for which jurisdiction already exists. Brindley et al. v. Meara et al., 209 Ind. 144, 198 N.E. 301, 305, 101 A.L.R. 682.
[2] The complaint, among other things, sought to have the ownership of the capital stock, mentioned in the complaint, adjudicated and settled. The answer of appellees, The National Bank of Logansport, Indiana, and Abe Berman, as coadministrators of the estate of Samuel O. Berman, also sought a determination of the ownership of said stock and sought coercive relief. It is insisted by appellants that the controversy was not terminated by the judgment. We do not agree with this contention. Certainly, by the judgment, the ownership of the stock was terminated and the right to a transfer thereof to appellee, Rae Druck, was also terminated and the judgment does not attempt to grant any coercive relief relative to possession thereof, except to place the right of such possession in appellee, Rae Druck, and, if necessary, said Rae Druck may resort to other remedies to gain possession thereof.
In the case of Brindley et al. v. Meara et al., supra, our Supreme Court said: “The Supreme Courts of Michigan and Pennsylvania have held, concerning statutes substantially identical with ours, that the proceeding is not intended as a substitute or alternative for the commonlaw actions; that relief is not proper under the statute where another established remedy is available; that any other interpretation would mean the practical abolition of all established forms of action at law and proceedings in equity, which was not intended by the enactment; and that the clause, 'whether or not further relief is or could be claimed,' was not intended to mean that proceedings by declaratory judgment are available whenever any controversy exists, but rather that such relief may be had even though for complete relief other and additional remedies must later be resorted to.”
A fair consideration of this question convinces us that under the issue joined, the finding and decision...
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