Black v. Krauss
| Decision Date | 05 May 1949 |
| Docket Number | 17821. |
| Citation | 85 N.E.2d 647,119 Ind.App. 529 |
| Parties | BLACK v. KRAUSS et al. |
| Court | Indiana Appellate Court |
Appeal from Warrick Circuit Court; J. Harold Hendrickson Judge.
Walker & Walker, Dean J. Call, John L Carroll, Henry B. Walker and Henry B. Walker Jr., all of Evansville, for appellant.
Wilbur F. Dassel and Sydney L. Berger, both of Evansville, and Leslie H. Hendrickson, of Boonville, for Geo. L Krauss.
This is an appeal from a judgment in an action brought by the appellant who was the owner of unpaid Barrett Law bonds, against the appellee Krauss to recover a personal judgment for the unpaid balance of an assessment for street improvements upon which the appellee Krauss had signed a Barrett Law waiver. Appellee, Paul W. Luhring, to whom Krauss had conveyed the lot involved in the assessment, was made a defendant at his own request.
The case was tried by the court which rendered judgment for appellees upon special findings of fact and conclusions of law.
Error assigned for reversal is the action of the court in overruling appellant's motion for a new trial which was based upon the specifications; that the decision of the court is not sustained by sufficient evidence and is contrary to law, and that the court erred in each of the first and second conclusions of law, which were that the law is with the defendant, George L. Krauss, and that Krauss is entitled to judgment and to recover his costs.
The appellees question the sufficiency of appellant's brief to present any question in that the appellant has failed to comply with Rule 2-17(f) of the Rules of the Supreme and Appellate Courts. The appellees contend that the appellant has failed to copy the assignment of errors set forth in the record in their brief under Propositions, Points, and Authorities, and that appellant has failed to apply its points on statements of rules of law to the question involved under each specification. A careful consideration and examination of appellant's brief in connection with all of appellees' objections convinces us that while some of appellees' objections are well founded, we feel they are technical in nature, and that the brief does disclose a good faith effort has been made by appellant's counsel to prepare the brief in conformity with the rules and requirements of this court. It seems apparent, taking the brief as a whole, that the briefmaker had the various rules in mind and has so prepared and presented his questions so that under the rules and with full consideration thereof this court is able to fully understand the questions presented in this appeal. Under the decisions of our courts we must rule that the brief of appellant is sufficient. Linville v. Chenoweth, 1945, 115 Ind.App. 355, 59 N.E.2d 129; Pierce v. Clemens, 1943, 113 Ind.App. 65, 71, 46 N.E.2d 836; Kist v. Coughlin, 1944, 222 Ind. 639, 649, 57 N.E.2d 199, 586.
There is no dispute concerning the material facts, and the issues presented question the inferences and conclusions in the court's findings and conclusions of law with reference to the facts. The facts show that the appellant was the owner of certain bonds issued to pay for the improvement of two streets in Evansville. That the appellee, Krauss, was the owner of a lot abutting these two streets at the time the assessment was made for the improvements. That he signed a Barrett Law waiver for the payment of the street assessment in ten installments. That after signing the Barrett Law waiver, Krauss deeded the real estate in question to one Paul Luhring and the deeds from Krauss to Luhring were recorded in the Recorder's Office of Vanderburgh County. In these deeds, Luhring assumed and agreed to pay the assessments. The assessments for street improvements were not paid by Luhring and Krauss was not notified of Luhring's failure to pay. Mrs. Black, the owner of the unpaid bonds and the appellant herein, turned the bonds over to the law firm of Walker and Walker 'to collect in a satisfactory manner and method and by whatever means they decided best.' Colonel Walker testified that the Pocket Realty Company was part of a plan to clear up a number of these bonds and took a great number of quitclaim deeds, and in answer to the question whether in this particular case the Pocket Realty Company acted for the plaintiff, Maude Black, Walker stated:
The court found that the law firm of Walker and Walker and members of the family of Colonel Walker owned the controlling stock of the Pocket Realty Company and the Hi-Way Development Company and maintained offices of said companies in the Old National Bank Building, along with the law firm of Walker and Walker, and the said Pocket Realty Company was used as an agent for the law firm to assist in the adjusting and settling of the bonds turned over to them by the plaintiff, Maude V. Black.
One Benoni J. Bippus was employed by the Hi-Way Development Company in the year 1940, and also acted as agent for the Pocket Realty Company and the law firm of Walker and Walker in the settlement, adjustment, and collection of the accounts and street improvement bonds turned over to Walker and Walker by the plaintiff, Maude Black.
On August 13, 1940, Henry Walker, of the law firm of Walker and Walker, and as attorney for Maude Black, caused two letters to be written and mailed to Paul W. Luhring, which said letters are in the words and figures as follows, to-wit:
That upon receipt of the letters set out, Paul W. Luhring called by telephone the office of Walker and Walker and talked to Benoni J. Bippus and acknowledged receipt of the letters referred to and stated: 'While I had expected to realize more out of this lot I would, in order to get relieved of this burden and all and get things straightened out, I would prepare the deed.'
When Luhring came to the office to sign and deliver the deed Henry Walker was in the office and signed the check for $10.00...
To continue reading
Request your trial