Citizens' Trust Co. v. Wheeling Can Co.
| Decision Date | 30 June 1927 |
| Docket Number | No. 25238.,25238. |
| Citation | 157 N.E. 441,199 Ind. 311 |
| Parties | CITIZENS' TRUST CO. v. WHEELING CAN C0. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Dubois Circuit Court; John T. Dillon, Judge.
In the matter of the B. F. Shaver Canning Company in receivership. From a judgment sustaining a motion of the Wheeling Can Company to reject reports, the Citizens' Trust Company, the receiver, appeals. Judgment affirmed.
A. L. Gray, of Hollywood, Fla., for appellant.
W. E. Cox, of Jasper, for appellee.
This is an appeal in a receivership, in which there was an interlocutory order for the payment of money by the receiver. The Citizens' Trust Company of Huntingsburg, Dubois county, Ind., was appointed receiver of the B. F. Shaver Canning Company, on April 5, 1919, by the Dubois circuit court, and entered upon its duties as such receiver. On January 25, 1922, the receiver filed a petition asking allowances for services rendered by it and by its attorney in the “main estate.” Acting upon an agreement which was signed by the attorneys of some interested parties, but not signed by the appellee or its attorneys, the court appointed Hon. Samuel A. Lambdin, an attorney at law of English, Ind., as referee to take evidence upon said petition and to report his conclusions to the court. The referee qualified, heard evidence, and filed his report containing his special finding of facts and conclusions of law thereon. Same showed that the receiver, by order of the court, had operated six canning plants of the canning company for one year, and that the court had allowed fees for the receiver and its attorney for their services in such operation, which fees were paid; and the receiver, pursuant to the order of the court had sold the real estate and personal property of its trust; and the court had allowed fees for the receiver and its attorney for those services, which fees were paid. The referee found that the receiver should have a further allowance of $550 for services, and that the attorney for the receiver was entitled to receive the sum of $3,284.81 for his services in addition to the amount already paid to him. The appellee, as a creditor, objected to the report of the referee. The court, on October 27, 1923, considered the report of the referee, and, according to the record, rendered judgment for the receiver in the sum of $550 and for its attorney in the sum of $3,284.81, and ordered same paid as follows: $250 to the receiver and $1,250 to the attorney, and the balance of the judgment to be paid to the receiver and its attorney upon the filing of the final report or further order of the court.
The receiver, on December 15, 1924, filed a current report, which was approved. This report is not set out in the record, and the statement of its contents does not show that any payment was made to the receiver or the attorney for services. But it is indicated elsewhere in the record that this report showed a payment of $250 to the receiver. The receiver, on January 25, 1926, filed another current report, which stated that it had paid out, in the administration of its trust, under the order of the court, to its attorney $1,750 and to itself $250 as fees. And the receiver, on April 6, 1926, filed a third current report, in which it claimed credit for $250 paid its attorney as balance of his fee. The appellee filed objections to said current reports.
[1] The court, on June 23, 1926, after hearing evidence, granted a motion of the appellee for a nunc pro tune entry to correct the judgment of October 27, 1923, in regard to allowance of fees for the receiver and its attorneys, for the reason that, through inadvertence and misprision of the clerk, same did not express the judgment and order of the court, as rendered and given by the court on said date. The reason stated by the court for this action was sufficient. The receiver contends that the court did not hear any evidence. The order made by the court contains the following statement:
“And it sufficiently appearing from the minutes on the court's bench docket, to wit, general entry claim and allowance docket No. 5, page 161, and from other evidence introduced at the hearing.”
It was ordered that the part of said judgment, a statement of which has been made herein, should be stricken out, and the following should be inserted:
“The report of the referee having not been acted upon as yet, the court now continues the finding of said report, but orders that the attorneys for the receiver be paid $1,500, and the same shall be considered on the final determination of the referee's report as payment.”
It was further ordered that the entry be made as of October 27, 1923, nunc pro tunc. The receiver objected and excepted to said order.
The court thereafter sustained part of appellee's motion objecting to the receiver's current reports, and rejected the part of the reports that showed payment of $1,750 to the receiver's attorney and $500 to the receiver, for the...
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