Bossert v. Geis

• Decision Date: 18 December 1914
• Docket Number: No. 9118.,9118.
• Citation: 107 N.E. 95,57 Ind.App. 384
• Parties: BOSSERT v. GEIS.
• Court: Indiana Appellate Court

57 Ind.App. 384

107 N.E. 95

BOSSERT

v.GEIS.

No. 9118.

Appellate Court of Indiana, Division No. 1.

Dec. 18, 1914.

Appeal from Circuit Court, Franklin County; N. S. Tiran, Special Judge.

Judicial partial settlement of the accounts of George A. Geis, as receiver of the Brookville Carriage Company. From an order sustaining a demurrer to exceptions filed to certain claims by Abe Bossert, he appeals. Affirmed.Walter F. Bossert, of Liberty, and Allen Wiles and Raymond S. Springer, both of Connersville, for appellant. I. N. McCarty and James B. Kidney, both of Brookville, for appellee.

FELT, J.

Appellee, as receiver of the Brookville Carriage Company, filed his partial report as such receiver, which report shows that he is chargeable with certain itemized claims amounting to $4,442.23; that he has paid out certain items amounting to $1,220.80, a balance for distribution of $3,221.43; that the above expenditures are all preferred claims for costs and expenses of receivership, labor, and payment of mortgage lien upon the real estate sold; that he has in his possession for collection book accounts in the sum of $85.45, and notes in the sum of $701 due said carriage company, on which he may be able to realize something; that he has examined and recommends the allowance of preferred claims, amounting to $113.65, which are shown in detail; also unpreferred claims amounting to $6,426.81. The report also shows that the Franklin County National Bank holds unpaid notes, heretofore sold and indorsed by said carriage company, and not due, in the sum of $280; that said bank would be entitled to share in distribution for any loss sustained thereon; that the receiver had arranged with said bank to hold out sufficient funds until they might know what their loss was and file claim therefor; that he deems it advisable to retain in his hands the sum of $215.71 for aforesaid accounts and other matters, and after paying said preferred creditors $113.65, he asks to make distribution of the balance of said funds to the unpreferred creditors, in the sum of $2,892.07, amounting to 45 per cent. of such claims; that his acts as such receiver be approved.

Among the unpreferred claims was one for $1,022.37 in favor of the Franklin County National Bank and the following:

Claim No. 24.

State of Indiana, Franklin County-ss.:

The Brookville Carriage Company, to John P. Schiltz Heirs, Dr.

Jany. 29, 1914.

To amount due and owing to John P. Schiltz, by said Brookville Carriage Company, at date of his death, February 12, 1913, as shown by the books of said company as the same has been audited and corrected by Mr. I. N. McCarty, $2,547.06. *** That the above amount is correct and true, and that the amount, to wit, $2,547.06, is justly due and owing to said Schiltz heirs, etc.

Claim No. 25.

The Brookville Carriage Company, Dr., to John A. Fries Estate.

First paragraph: Sept. 9, 1902, to Oct. 1906. To cash loaned the said Brookville Carriage Company for payment of bills, together with interest on same, $1,286.45.

Second paragraph: Sept. 9, 1902, to March 25, 1913. To cash loaned said Brookville Carriage Company as above set out, evidenced by a promissory note dated Jan. 2, 1911, a copy of which note is set out below. $1,286.45. Brookville, Ind., January 2, 1911.

No. -. Due -.

One year after date we promise to pay to the order of John A. Fries $1,100.00 (eleven hundred dollars) value received without any relief whatever from valuation or appraisement laws with interest at the rate of six per cent. per annum until due and - per cent. per annum after maturity until paid and attorney's fees. The drawers and indorsers severally waive presentment for payment, protest and notice of protest and nonpayment of this note.

Payable at Franklin County National Bank at Brookville, Indiana.

Brookville Carriage Co.,

Per J. P. Schiltz, Pres.

On April 27, 1914, Abe Bossert, appellant, filed exceptions to said report, setting forth in substance, the following: That he was an indorser on certain notes of the Brookville Carriage Company held by the Franklin County National Bank, which bank was entitled to share in the distribution of the funds in the hands of said receiver available for payment of the claims due the general creditors of said carriage company; that the claim of said bank amounts to $1,022.37 and the report of said receiver recommends the payment of 45 per cent. of said claim; that no distribution should be made by the receiver until all rights of all classes of creditors have been determined; that claim No. 24 in favor of the heirs at law of John P. Schiltz, deceased, is not itemized, nor is it shown how the indebtedness was contracted; that said Schiltz was for a long time immediately prior to his death president of the said Brookville Carriage Company, and was such officer at the time the money was loaned to said company; that there was never any action of, or resolution passed by, the board of directors of said Brookville Carriage Company relative to said amount; that said claim was made by Schiltz as such president in his trust capacity for said corporation with himself as an individual; that claim No. 25 in favor of the administrator of the estate of John A. Fries, deceased, against said carriage company is for cash loaned to said company for the payment of its bills, and is evidenced by the promissory note of said company executed by said J. P. Schiltz as president; that said Fries was at the time said money was loaned and note executed, an officer and director of said carriage company; that said note was executed without the knowledge or approval of the board of directors of said carriage company, and while said Fries was holding a fiduciary and trust relation toward the Brookville Carriage Company. To the foregoing exceptions the receiver demurred as follows:

“George A. Geis, receiver of the Brookville Carriage Company, demurs to the exceptions filed in said cause relating to a partial report of said receiver, for the reason that said exceptions do not state sufficient facts to constitute valid objections to said report in this, to wit, that the claims allowed and excepted to were for money had and received by said Brookville Carriage Company from such claimants and used in paying labor and other debts of said carriage company, and that the directors of said carriage company well knew, at the time, that said moneys were being so advanced and paid out for their debts as such company, and accepted the benefits derived therefrom and acquiesced in such advancements, and that for said reasons it is immaterial whether the board of directors authorized the same or not.”

This demurrer was sustained, and appellant excepted to such ruling.

Appellant has assigned as error that the court erred in sustaining the demurrer of George A. Geis, receiver of the Brookville Carriage Company, appellee, to the exceptions filed by Abe Bossert, appellant, to the receiver's partial report in said cause.

[1] Other errors are attempted to be assigned for the sustaining of the demurrer to each separate specification of said exceptions, but, inasmuch as the record shows no demurrer presented to such separate specifications, and no exceptions saved, other than the one relating to the ruling on the demurrer to the exceptions as a whole, no question is presented by any of the specifications of error except the first.

The case was appealed to the Supreme Court, and was by that court transferred to this court for want of jurisdiction.

[2] An appeal may be taken from an order for the payment of money. Section 1392, cl. 15, Burns 1914; Acts 1907, p. 237; Barney v. Elkhart, etc., Co., 167 Ind. 505, 79 N. E. 492;Natcher v. Natcher, 153 Ind. 368, 55 N. E. 86;Pounds v. Chatham, 96 Ind. 342, 346;Chicago, etc., Co. v. Gostlin, 30 Ind. App. 504, 508, 66 N. E. 514;Cook v. Citizens' Nat. Bank, 73 Ind. 256, 261.

[3] Where exceptions have been filed to the report of a receiver, the report stands as the complaint and the exceptions as the answer thereto. The practice of testing the sufficiency of such exceptions, as an answer, or as showing valid objections to the correctness of such report by demurrer, has been recognized by this court and by our Supreme Court. Johnson v. Central Trust Co., 159 Ind. 605, 607, 608, 65 N. E. 1028;Spray v. Bertram, 165 Ind. 13, 15, 74 N. E. 502;Wysong v. Nealis, 13 Ind. App. 165, 169, 41 N. E. 388;Brownlee v. Hare, 64 Ind. 311,...