Coats v. Veedersburg State Bank

• Decision Date: 29 December 1941
• Docket Number: 27660.
• Parties: COATS v. VEEDERSBURG STATE BANK et al.
• Court: Indiana Supreme Court

38 N.E.2d 243

219 Ind. 675

COATS v. VEEDERSBURG STATE BANK et al.

No. 27660.

Supreme Court of Indiana

December 29, 1941

Wm J. Sprow, of Crawfordsville, and White & White, of Covington, for appellant.

Wallace & Wallace, of Veedersburg, for appellee Veedersburg State Bank.

SHAKE Chief Justice.

Joseph L. Coats died intestate on July 28, 1938, survived by his widow and their seven children. The appellant is the administrator of the estate. The decedent left no personal property but owned real estate at the time of his death. The appellee the Veedersburg State Bank has unpaid judgments obtained against the decedent in his lifetime, and the expenses of the decedent's last illness and funeral and the costs of administering his estate are also unpaid.

On November 2, 1939, the appellee bank filed its petition asking the court for an order of execution on its judgments; the administrator filed a petition to sell real estate to make assets to pay debts on November 20th; and on December 7 1939, the administrator filed a petition to stay the proceedings instituted by the bank. The cause was submitted to the court for trial, which denied the appellant's petition for a stay and entered an order that two-thirds of the decedent's real estate be sold on execution to pay and satisfy the bank's judgments. The appellant moved for a new trial, which motion was overruled, and judgment was entered for the bank.

The appellee bank contends that we ought not consider the merits because (1) Elmer E. Thompson, receiver, was not made a party to this appeal, and (2) because the only ground assigned in appellant's motion for a new trial is insufficient to present any question. The receiver was originally a defendant, but he answered specially that he had been discharged and that he had no interest in the litigation. The receiver's answer was not denied, but the court found the allegations thereof to be true and rendered no judgment as to him. On this state of the record, the receiver is not a necessary party to this appeal. Elwood State Bank v. Mock, 1907, 40 Ind.App. 685, 82 N.E. 1003.

The sole ground for a new trial was that 'the decision of the court is not sustained by sufficient evidence and is contrary to law,' which is substantially in the language of the statute. § 2-2401, cl. 6, Burns' 1933, § 368, cl. 6, Baldwin's 1934. While it has many times been held that this clause of the statute provides two distinct causes for a new trial, we do not know of any reason why a party may not assign these grounds jointly if he believes that he can sustain both. It may be added that a verdict or decision that is not sustained by sufficient evidence is contrary to law, though the converse is not necessarily true. The rule stated in Wilson, Adm'x v. Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905, cited by the appellee bank, is not applicable to the situation, and the appellant's motion for a new trial is sufficient to present the alleged errors relied upon.

This case involves the construction and application of Acts of 1883, ch. 121, § 17, § 6-1020, Burns' 1933, § 3138, Baldwin's 1934, which provides: 'No proceedings shall be instituted before the end of one (1) year from the death of the decedent to enforce the lien of any judgment rendered against the decedent in his lifetime upon real estate or any decree specifically directing the sale of such real estate to discharge any lien or liability created or suffered by the decedent nor shall any suit be brought before that time against the heirs or devisees of the deceased to foreclose any mortgage or other lien thereon for the payment of which his personal estate shall be liable; and in case of suit to foreclose any mortgage or other lien thereon, the executor or administrator shall be made a party defendant thereto; and if the executor or administrator shall be diligently prosecuting his proceedings to sell the real estate of the deceased for the purpose of making assets to discharge such liens, further proceedings for the sale thereof by the holders of liens thereon shall be stayed, upon the application of the executor or administrator. This section shall not apply to cases where, before the end of the year, the real estate shall have been sold by the executor or administrator subject to liens thereon, nor to mortgages and judgments in favor of the estate (state).'

Does this statute mean that a creditor's proceeding to enforce a judgment or decree, or to foreclose a lien, shall be stayed, upon a showing of diligence, if the administrator's petition to sell real estate was filed (1) during the year; (2) prior to the filing of creditor's petition; or (3) prior to the administrator's application for a stay? In other words, as of what time must the administrator have exercised diligence to be entitled to the stay? The parties take extreme views. The appellee bank says that the stay should be denied unless the administrator began his proceeding to sell before the expiration of the year, and the appellant says that the inquiry is of the time that the administrator filed his petition for a stay.

The language of the statute is palpably...