Chambers v. Boatright, 19390

• Decision Date: 19 October 1961
• Docket Number: No. 2,No. 19390,19390,2
• Citation: 132 Ind.App. 378,177 N.E.2d 600
• Parties: Aldo CHAMBERS, and Mabel Chambers, Husband and Wife, Appellants, v. Otis H. BOATRIGHT, Jr., and Essie D. Boatright, Husband and Wife, Appellees
• Court: Indiana Appellate Court

Page 600

177 N.E.2d 600

132 Ind.App. 378

Aldo CHAMBERS, and Mabel Chambers, Husband and Wife, Appellants, v. Otis H. BOATRIGHT, Jr., and Essie D. Boatright, Husband and Wife, Appellees.

No. 19390.

Appellate Court of Indiana, Division No. 2.

Oct. 19, 1961.

Steers, Klee, Jay & Sullivan, Indianapolis, Stevenson, Kendall & Stevenson, Danville, for appellants.

H. R. Wilson, Jr., Indianapolis, for appellees.

KELLEY, Judge.

The appellants duly instituted this action in Room 2 of the Superior Court of Marion County against appellees for the possession of certain described real estate in the city of Indianapolis and for the appointment of a receiver to collect the rents therefrom. The complaint alleges in material substance that the appellants, by written contract, agreed to sell and appellees agreed to buy said real estate on which there was located 'four residences or dwelling units'; that appellees were in default in payment of the monthly payment due May 1, 1958, and of the interest, taxes, and insurance. None of the said residence or dwelling units were occupied by appellees. Two days after the complaint was filed, a receiver was appointed by said court. Further reference to the said appointment of said receiver will be made subsequently. A change of venue took the cause to the Circuit Court of Hendricks County where, upon issues appropriately closed, the same were submitted to the court, without jury. At the conclusion of the trial, the court entered a finding for the appellees and rendered judgment that appellants take nothing and with costs against them.

The only assignment of error is that the court erred in overruling appellants' motion for a new trial. Specifications 3, 4, 5 and 6 of said motion assert that since the trial appellants have discovered evidence material to their action. In the several particulars, they say that they 'could not with reasonable diligence have discovered and produced' the particular evidence referred to in each of said specifications. Attached to the motion are four affidavits concerning, respectively, the subject of said specifications. Nothing is alleged or set out in the new trial motion or in the said affidavits to show why the evidence was not available to appellants at the time of the trial. Nor are any facts set forth or any detailed statement made therein as to any diligence exercised by appellants to procure said evidence at the trial. The only averment in the motion as to appellants' diligence in the matter is their aforesaid negative conclusion.

It is not sufficient to generally allege diligence in procuring evidence at the trial, Anderson v. Hathaway, 1891, 130 Ind. 528, 30 N.E. 638, Allen v. Bond, Trustee, 1887, 112 Ind. 523, 14 N.E. 492, Bertram v. State ex rel., 1903, 32 Ind.App. 199, 69 N.E. 479, and mere conclusions are insufficient, Schick v. Blakesley, 1922, 80 Ind.App. 253, 134 N.E. 498. 'The motion must set out a detailed statement of the facts constituting the diligence with such particularity, definiteness and clearness that the court may itself see, on the face of the pleading, that there was, in fact, proper diligence'. 22 I.L.E. New Trial § 120, p. 100, and cases cited. Appellants' motion for a new trial fails to meet said requirements as to said specifications of newly discovered evidence and, insofar as said specifications are concerned, appellants have demonstrated no abuse of the court's judicial discretion in regard thereto.

The only remaining specification of error available for consideration is that charging that the decision is contrary to law. The specification that the decision is not sustained by sufficient evidence is unavailable since the finding was negative. The foremost question arising from the said former claimed error concerns whether appellants were required to give notice to appellees of their intention to rescind and declare a forfeiture of the written conditional sales contract. There is no contention that any such notice was given to appellees.

The record evidence discloses that on April 6, 1957, the parties entered into a written conditional sales contract by the terms of which appellees were to pay $18,000 for the real estate, payable $1,000 down, $500 on July 1, 1957, and $175 each month, beginning May 1, 1957, and to pay, also, the taxes and insurance; that from the date of entry into the contract, appellees did not make the payments therein provided, regularly or on the dates they became due. The evidence further shows that from time to time appellants accepted the payments after they became due. They advised the appellees that the latter had not 'lived up to the terms of the agreement' and that appellants had been 'very lenient with you (appellees), and in the future shall expect you to live up to the terms of the Conditional Sales Contract.' However, the evidence reveals that appellants habitually, consistently and customarily continued to accept delinquent payments on the account, even after the present action was commenced, in amounts and at times different from those expressed in the contract.

The instant action was filed on May 7, 1958 and on May 9, 1958 one J. S. Cruse was appointed receiver by the judge of said Room 2, Superior Court of Marion County. The record reveals the following testimony of appellee, Otis H. Boatright, Jr., relative to the appointment of said receiver (as quoted in appellants' brief):

'On May 9, 1958 I met at Mr. Jay's office an hour or possibly an hour and a half before the trial. I was there pursuant to an invitation by him. He sent me a telegram and called me on the phone. He told me when to come in. Mr. Chambers was there. Mr. Jay was representing Mr. Chambers. I had a conversation with Mr. Jay in the presence of Mr. Chambers relative to a receivership in this matter. On the phone Mr. Jay tried to induce me to voluntarily turn the property over to Mr. Chambers. I told him 'no. I wouldn't do that because I put money in it and it came out of my own pocket when the tenants moved out owing me' and I told him that 'I had too much at stake in it to do that.' We talked about it too, so he offered a suggestion about the receiver. He says 'we can appoint a receiver to collect the rents and pay up this deficit'--in other words, the $504.00 insurance Mr. Chambers claimed I was in arrears in, 'and apply the balance to the contract' which I agreed to that and also when we went over to the Court. Mr. Chambers, Mr. Jay and myself. I wasn't represented by counsel. The judge asked me did I have counsel and I told him it was too short a notice. I told him I hadn't reached any agreement with Mr. Jay and Mr. Chambers and I went on to state what agreement that we reached. That I would be willing to let the property go into receivership and let the receiver clear up the debt I owed concerning the taxes and the insurance, and apply the balance on the contract, and I also stated that I had the $100.00 that could be applied on the contract. I paid the $100.00 on the contract. That was after I went to court. I paid it to J. S. Cruse's office. Mr. Chambers was with me. Before the 9th of May I had paid $80.00. I sent it off on the 5th. I sent it airmail, special delivery.'

Although Mr. Jay testified at the main trial, in rebuttal, that he never at any time made an agreement or promise with said appellee that the money collected by the receiver would be credited on the contract payments, the trial court apparently accepted said evidence given by said appellee.

The haste with which said receiver was appointed by the Superior Court under the circumstances portrayed by the testimony of appellee, Otis H. Boatright, Jr., impels us to comment thereon. It seems undisputed that said appellee was brought before said court by appellants and their said attorney and that the court was then informed that said appellee was without counsel because 'it was too short a notice.' Although the record, as shown in appellants' brief, appears devoid of any allegation or proof that any grave emergency existed or that great and irreparable harm or loss would result without a receiver, the said court, nevertheless, proceeded then and there to hear the matter and appointed the receiver. It would appear more consonant with substantial justice if said court, under said circumstances, had afforded said appellee an opportunity for reasonable time within which to secure representation by counsel so that all the circumstances leading to any necessity for a receiver and the arrangements, if any, between the parties, as to the nature, scope, and purpose of the receiver's duties and his application of funds received by him could be properly investigated and inquired into for the enlightenment of said court.

The aforesaid quoted evidence of said appellee clearly reflects that he made no opposition to the appointment of the receiver because he held the expressed impression that he had reached an agreement with appellants and their attorney as to the purpose for which the receiver was to be appointed. There is nothing in appellants' brief to show that appellee's said understanding was ever denied or contested at the time of the receivership hearing. In fact, appellants' Exhibit No. 22, pages 9 to 14, both inclusive, put in evidence by appellants at the main trial, which purports to be a transcript of the testimony given at the receivership hearing on May 9, 1958, lends support to said appellee's recital of his said understanding. Appellants' counsel, as shown by said exhibit, made a statement or declaration, as a prelude to a subsequent question, that:

'Q. And the receiver will collect it, make the payments on the contract, pay the taxes and insurance and any upkeep. * * *.' (Emphasis supplied.)

We are of the opinion that in view of appellants' consistent acceptance of payments by appellees at irregular times and in irregular amounts, as we have heretofore said is revealed by the record evidence before us, the appellants were...