Berry v. State Bank of Otterbein

• Citation: 193 N.E. 922,99 Ind.App. 655
• Decision Date: 13 February 1935
• Docket Number: 15,030
• Parties: BERRY ET AL. v. STATE BANK OF OTTERBEIN ET AL
• Court: Court of Appeals of Indiana

193 N.E. 922

99 Ind.App. 655

BERRY ET AL. v. STATE BANK OF OTTERBEIN ET AL

No. 15,030

Court of Appeals of Indiana

February 13, 1935

From Benton Circuit Court; Charles M. Snyder, Judge.

Action by Burton B. Berry and others against the State Bank of Otterbein and the receiver thereof to establish a preferred claim for attorney fees. From a judgment for defendants plaintiffs appealed.

Affirmed.

Burton B. Berry, Wilbur G. Nolin and Ernest M. Hawkins, for appellants.

Fraser & Isham, for appellees.

OPINION

BRIDWELL, J.

Appellants brought this action against appellees by a complaint in two paragraphs, the purpose of the action being to establish and enforce a preferred claim against the receivership estate of appellee, State Bank of Otterbein. Appellees filed their answer to the complaint in general denial. The cause was submitted to the court for trial, and at the close of all the evidence appellants filed a motion for a finding and judgment that their claim was a preferred claim. This motion was overruled and the appellants excepted. The court made a general finding against appellants as to the claim being a preferred one, but found in their favor that they were entitled to a general claim in the amount of $ 350. Appellants filed motion for a new trial which was overruled and they excepted. Judgment was rendered in accordance with the finding, and this appeal thereafter perfected, the errors assigned and relied upon for reversal being alleged error in overruling appellants' motion for a finding and judgment that the claim was a preferred claim, and in overruling the motion for a new trial.

The overruling of the motion of appellants for a finding and judgment in their favor cannot properly be made the basis for an independent assignment of error on appeal, as such a motion is in purpose similar to a motion for a directed verdict in case of a trial by jury. Such action must be presented to the trial court as a cause for a new trial, and the court's refusal to grant a new trial assigned for error in order to present the question for review. Chicago etc. R. Co. v. Mitchell (1916), 184 Ind. 383, 110 N.E. 215; U. S. etc. Ins. Co. v. Batt (1912), 49 Ind.App. 277, 97 N.E. 195.

The motion for a new trial specifies five causes why same should be granted. These causes, considered separately or together, present but one question, and that is as to whether under the facts proved the court erred in holding that the claim of appellants was not entitled to preference.

The evidence discloses that appellants are attorneys at law and that the sum they seek to recover as a preferred claim is an amount claimed to be due them for professional services rendered in securing judgment on two promissory notes, said judgment being in favor of the Farmers & Merchants State Bank of Otterbein and against Jesse and Ada McKinney. The judgment was taken on November 20, 1929, and was for the sum of $ 7920, principal and interest, and $ 300 attorneys' fees, in all $ 8220. On April 15, 1929, said Farmers & Merchants State Bank of Otterbein was merged with the State Bank of Otterbein, and it is stipulated "that said judgment by virtue of said merger agreement became the absolute property of the State Bank of Otterbein." On November 13, 1930, a letter was written by Berry and Nolin (two of the appellants) to the State Bank of Otterbein, in response to a letter received from said bank, wherein it was stated that there never had been any offer of compromise made to said attorneys, and suggesting that some officer of the bank, or some person connected with it, see if some arrangement could not be made to get the judgment satisfied. On December 5, 1930, said attorneys by letter informed said bank that "Jesse" (one of the judgment debtors) had said that he thought he could make arrangements to pay $ 3000, and give his note, with his mother as endorser, for the balance due on said judgment. In this letter it was urged that the matter receive attention without delay, and "before any more complications arise." On December 6, 1930, appellants Berry and Nolin entered in writing in the margin of the record where said judgment was recorded, their intention to hold a lien thereon for $ 300 attorneys' fees, with interest from date of judgment. On December 23, 1930, the judgment debtors and the State Bank of Otterbein agreed that two new notes would be given to said...