Boonville National Bank v. Blakey

• Decision Date: 05 January 1906
• Docket Number: 20,715
• Citation: 76 N.E. 529,166 Ind. 427
• Parties: Boonville National Bank et al. v. Blakey, Trustee
• Court: Indiana Supreme Court

76 N.E. 529

166 Ind. 427

Boonville National Bank et al. v. Blakey, Trustee

No. 20,715

Supreme Court of Indiana

January 5, 1906

Rehearing Denied May 8, 1906.

From Perry Circuit Court; C. W. Cook, Judge.

Suit by William Blakey, as trustee in bankruptcy of the estate of Marion Folsom, bankrupt, against the Boonville National Bank and others. From a decree for plaintiff, defendants appeal. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Reversed.

Frank B. Posey, Alfred Butsch, L. A. Folsom, Edward Gough, J. E Williamson, C. W. Armstrong, H. Fulling and Hatfields &amp Hemenway, for appellants.

John E. Iglehart, Edwin Taylor, John C. Strother and Eugene H. Iglehart, for appellee.

OPINION

Gillett, C. J.

Appellee instituted this suit against the Boonville National Bank, of Boonville, Indiana, the People's Bank, of Boonville, Indiana, Herbert E. Hoggatt, John G. Shryock, Laura Folsom, Charles M. Hammond and Truman P. Tillman. The four defendants first above mentioned are appellants in this court, and have filed separate assignments of error. The remaining defendants were successful below.

By the complaint, which is in one paragraph, appellee, a trustee in bankruptcy of Marion Folsom, sought to recover from each appellant the amount of a payment received by such appellant from said Folsom, together with interest, on the theory that such payment was made and accepted as a preference. As to the defendants Hammond and Tillman, it was sought to set aside a transfer of choses in action which they had received from said Folsom, and Laura Folsom was made a party for the purpose of setting aside a conveyance of real estate which said bankrupt had caused to be made to her. Although there are collective allegations as to the condition of the debtor's estate, as to his fraudulent purpose in doing the several acts charged, and as to the facts concerning his subsequent bankruptcy, yet there are separate averments concerning each of the alleged preferences received by appellants respectively, and as to them it may be fairly said that, in substance, the complaint is really a group of suits or actions to charge each on account of a preference received. There is an allegation or claim that appellee is entitled to an accounting, but the amount which each appellant received is definitely alleged. There are averments concerning a combination, as follows: "Plaintiff further avers that defendant Marion Folsom, being then and there insolvent as aforesaid, and intending to prefer his said creditors, and to cheat, hinder and delay all of his creditors, came to a fraudulent determination and entered into a fraudulent and secret combination with defendants, and each of them, so to manage and conceal all of his said property and pay the proceeds of the same out so as to delay and defraud all other of his creditors, including all of his trade creditors, which represented about the sum of $ 10,000, and in the fulfilment of said fraudulent designs, and without any fair consideration paid to him by any of the defendants, he made each and all of the transfers hereinbefore set out." The complaint also contains the following language: "Plaintiff avers that if he brings a separate suit against each of the defendants there will be a multiplicity of suits, causing great and unnecessary delay, inconvenience and expense, and that most, if not all of the time, labor, testimony and expense necessary to procure and defend each of said suits separately may be incurred, done and taken once for each and all of the controversies arising upon the facts hereinbefore set out, and without unnecessary inconvenience or expense to any of the defendants. * * * Plaintiff further avers that he is entitled to an accounting from each of the defendants, as to the amount received by each of them, and he is entitled to have the estate of said bankrupt, which was scattered into the hands and into the possession of the several defendants, as hereinbefore set out, gathered together and returned to him, the plaintiff, to be disposed of according to law for the benefit of the creditors of said defendant Marion Folsom, and said pretended deed from said Frank Hatfield to the defendant Laura Folsom ought to be set aside as fraudulent, and the title to said land therein decreed to be the land of the defendant Marion Folsom, and a part of his estate, to be sold as such." As to appellants, the prayer is that each defendant be required to account, in order to determine what portion such defendant received, and that each be decreed to pay back the payment alleged to have been received, together with interest.

The Boonville National Bank filed a motion that the court "separately docket the plaintiff's cause of action against itself, to the end that issues may be formed and a trial had upon the controversies between the plaintiff and this defendant free and independent of separate and distinct controversies between the plaintiff and other defendants herein." The People's Bank filed a motion to the same effect. Both of these motions were overruled, and exceptions were reserved. Each of the appellants filed a demurrer to the complaint, assigning, as grounds, a want of facts to constitute a cause of action and an improper joinder of causes of action. The demurrers were overruled. Hoggatt filed a motion to separate and for a separate trial, but this motion does not appear to have been ruled on. Appellants separately filed answer, and the issues were closed by replies to such of the paragraphs of answer as were special. Appellants Hoggatt and Shryock subsequently filed motions for separate trials by jury. These motions were overruled, and exceptions were taken. There was a trial by the court, which resulted in a finding for appellee against appellants, and separate judgments were rendered thereon against each for the amount of the payment alleged to have been received by such appellant, together with interest.

Up to this time we have not mentioned the separate motions of appellant banks for a separate trial, because appellee is insisting that there is not a proper record of the overruling of this motion and of the reservation of an exception. At the April term the record was amended to show such entry as of the preceding November term. The finding and judgment was at the April term, and the proceedings to amend had as their basis a verified motion in writing, which was filed between the entry of judgment and the filing of a motion for a new trial. We are of opinion that the record must be treated as having been amended.

A materially different rule exists with respect to the power of amendment while the proceedings are in fieri. Up to that time the authority to permit amendments is inherent in the court, and does not depend upon statute. Anonymous (1694), 1 Salk. 47; Banfield v. Milner (1760), 2 Burr. 1098; Mace v. Lovett (1772), 5 Burr. 2833; 1 Tidd's Practice (7th Am. ed.), 711. Blackstone states that the courts, "where justice requires it, will allow of amendments at any time while the suit is pending, notwithstanding the record be made up, and the term be past. For they at present consider the proceedings as in fieri, till judgment is given; and therefore, that till then they have power to permit amendments by the common law: but when judgment is once given and enrolled, no amendment is permitted in any subsequent term." 3 Blackstone's Comm., 407. Aside from legislative enactment, the consideration of giving stability to judgments plainly requires that errors in judicial proceedings which are sought to be avoided after the opposite party has gone out of court should be evidenced in some peculiarly authentic way; but up to the time that the cause ceases to be in fieri the court ought not to be, and is not, powerless to relieve itself of the omission of its clerk to enter an intermediate order which was actually made. Up to that time it is within the power of the court to make its records speak the truth. Horn v. Indianapolis Nat. Bank (1890), 125 Ind. 381, 25 N.E. 558, 9 L. R. A. 676, 21 Am. St. 231; Bilansky v. State (1859), 3 Minn. 427; 1 Elliott, Gen. Prac., § 192. As was said in the Horn case: "The proceedings were, therefore, in fieri at the time the nunc pro tunc entry was made, and hence it was clearly within the power of the court to make its record speak the truth. The rule which applies in cases where the action has been fully terminated by final judgment is not relevant to such a case as this."

Here it was necessary to file a motion for a new trial, to bring the error, if any, of denying a separate trial forward, and therefore the order overruling the motion stood to all intents and purposes as the final judgment. New York, etc., R. Co. v. Doane (1886), 105 Ind. 92, 4 N.E. 419; Colchen v. Ninde (1889), 120 Ind. 88, 22 N.E. 94. Until that time the plaintiff was in court, and the litigation was not at an end (Johnson v. Gebhauer [1902], 159 Ind. 271, 64 N.E. 855), so we think that the case was plainly one in which the proceedings were still in fieri. But if we should be mistaken in this, we must assume that the record was properly amended. Whether there was sufficient evidence to authorize an amendment was a question of fact (1 Freeman, Judgments [4th ed.], § 63), and as the record does not reveal the fact as to whether the court acted on any further evidence than the verified application and the affidavit in support thereof, we are bound to presume that the evidence was sufficient to warrant the amendment of the order. Salem-Bedford Stone Co. v. O'Brien (1898), 150 Ind. 656, 49 N.E. 457.

But one objection to the complaint is urged in support of the demurrer for want of facts, and that is that a demand was not alleged. It is contended by counsel for appell...