Craig v. Norwood

• Decision Date: 03 March 1915
• Docket Number: 8,589
• Citation: 108 N.E. 395,61 Ind.App. 104
• Parties: CRAIG ET AL. v. NORWOOD, ADMINISTRATOR
• Court: Indiana Appellate Court

108 N.E. 395

61 Ind.App. 104

CRAIG ET AL. v. NORWOOD, ADMINISTRATOR

No. 8,589

Court of Appeals of Indiana

March 3, 1915

Rehearing denied June 25, 1915.Transfer denied February 17 1916.

From Hendricks Circuit Court; James L. Clark, Special Judge.

Action by James A. Norwood, administrator de bonis non of the estate of Joseph Peggs, deceased, against James A. Craig and others.From a judgment for plaintiff, certain defendants appeal.

Reversed.

Charles A. Dryer and Thad.S. Adams, for appellants.

Charles F. Remy and James M. Berryhill, for appellee.

OPINION

IBACH, J.

Appellee brought this action against a large number of defendants, all of whom were discharged from all liability by the instructions of the court except Mary A. Myers, James A. Craig and Oliver L. Means, as executors of the last will and testament of Margaret F. McGregor, deceased, who were substituted as defendants in her stead upon her death, and James A. Craig, to whom Joseph Peggs executed a power of attorney for the transaction of his business about March 8, 1905.Two suits were previously brought, one by a former administrator, and were dismissed or otherwise disposed of before proceeding to judgment.The complaint in the present action originally embraced several paragraphs, which were disposed of by demurrer, or dismissed, except the fifth and sixth.These paragraphs, together with the supplemental complaint substituting the executors of the will of Margaret McGregor, after her death, formed the complaint upon which the cause proceeded to final judgment.

The fifth paragraph of complaint charges that defendantsMary A. Myers, Margaret McGregor, and James A. Craig entered into a conspiracy to wrongfully and fraudulently procure for themselves, their children, and other named partiesdefendant, all the money and property of Joseph Peggs, and in furtherance of that conspiracy procured the appointment of Craig as attorney in fact for Peggs to transact all of his business, and fraudulently converted it to their own use.The sixth paragraph alleges in substance all that is contained in the fifth with the additional charge that Joseph Peggs was at the time and for two years prior thereto a person of unsound mind, and was so well known to be.

Appellants filed a verified motion to stay proceedings until the costs of the two preceding actions between the same parties and for the same cause had been paid.The overruling of this motion presents the first alleged error.Appellants then filed separate and several demurrers to each paragraph of complaint, which were also overruled, and exceptions saved.The answer was in three paragraphs, the first a general denial, and the second and third, which set up affirmative matter, were held insufficient on demurrer.The cause was tried by jury, and a verdict was returned in favor of appellee for $ 4,500.Appellee over the objection of appellants remitted $ 600 and over a motion for new trial, judgment was entered for $ 3,900 on the verdict.Each of the aforesaid rulings is assigned as error by the appellants in this court.We will proceed to consider them in their proper order.

As a general rule, while the costs of a dismissed action remain unpaid, the commencement of a subsequent suit for the same subject-matter will be presumed to be vexatious, and will as a general rule be stayed by the court, upon proper application, until the costs occasioned by the former suit are paid.An exception to this general rule arises, however, where the plaintiff shows affirmatively that the subsequent suit is not vexatious, but is excusable, and is brought in good faith.Wait v. Westfall(1904), 161 Ind. 648, 651, 68 N.E. 271, and authorities there cited.The rulings of the trial court on an application to stay proceedings for the nonpayment of the costs of a former suit, do not constitute a final judgment from which an appeal may be taken; on the contrary, such an application is addressed to the sound discretion of the trial court, and its action is subject to review by this court when an abuse of that discretion appears.Trogdon v. Brinegar(1901), 26 Ind.App. 441, 59 N.E. 1066, and cases cited.Appellant contends that a second action between the same parties for the same cause, without paying costs of the former suit is presumably vexatious, and that the bringing of the same suit for a third time would be conclusively vexatious, and that the question under such circumstances would not be one in which the discretion of the trial court was to be exercised, but that such third suit would of necessity abate.We know of no authority on which such a claim could properly rest.The number of times a party has sought to litigate a cause in court will not of itself determine conclusively his rights.The Bill of Rights in our State Constitution guarantees that the courts shall be open to every man for injury done him and he shall have remedy by due course of law; "justice shall be administered freely and without purchase, completely and without denial; speedily and without delay."Under the provisions of our organic law a party has the right to bring and prosecute his action to final judgment regardless of the number of suits he has previously brought, unless it appears that he is simply bringing such actions to harass and annoy, or that they are vexatious and without merit.It seems to us that when such applications are presented to the trial court, the question is not simply the number of times a suit has been brought, or whether the parties are at all times the same, but whether the action has in fact been brought in good faith, or whether it is vexatious and without merit.No fixed rule can be established to govern in all cases, but rather the facts and circumstances of each particular case must govern, but in no case should an application to stay proceedings be granted unless it appears to the court, in the light of all the surrounding circumstances, that the subsequent suit is without merit and vexatious.Eigenman v. Eastin(1897), 17 Ind.App. 580, 45 N.E. 795, and cases cited.

The presumption is that the trial court in refusing appellants' application in the case was not influenced or actuated by any improper motive, and did no wrong, so that before this court will reverse a judgment of the trial court on account of an abuse of legal discretion, it must appear clearly and unequivocally that such court has abused its discretionary powers.Elliott, App. Proc. § 604;Mead v. Burk(1901), 156 Ind. 577, 60 N.E. 338.It will also be observed that the first suit was brought by a former administrator and the second by the present administrator, in their representative capacities, and the statute authorizing them so to do specially exempted them from personal liability for costs.§ 2808Burns 1914, § 2291 R. S. 1881.It would unnecessarily prolong this opinion to set out the verified application and the counter affidavits by the parties.It is sufficient to say that there was some evidence on which this ruling of the court can be sustained.An issue of fact determined by the trial court on conflicting affidavits is conclusive on this court.Conrad v. State(1896), 144 Ind. 290, 295, 43 N.E. 221.There was no error in the ruling of the trial court on this application.

This action was instituted January 25, 1910.The act of 1911(Acts 1911p. 415, § 344 Burns 1914), cited by appellee, requiring demurrers on the ground of insufficiency of facts to state a cause of action to be accompanied by a memorandum, showing in what respects the pleading is insufficient, does not apply, because it is expressly provided in that act that it shall not apply to litigation pending at the time the act took effect.

There can be no doubt, when a person dies intestate, without leaving a widow and there is no indebtedness and there is nothing to be done by way of administration of the estate but the division of it among the heirs, that such heirs at law may settle the estate without an administrator and they may resist the appointment of one, or may bring suit to set aside the appointment, if one is made, and thereby remove him.Block v. Butt(1908), 41 Ind.App. 487, 84 N.E. 357.Also, the heirs, under such circumstances, and where there is no administrator have the right to sue in their individual names to recover a demand due decedent in his lifetime.This, however, is the exception to the general rule.Brunson v. Henry(1894), 140 Ind. 455, 39 N.E. 256;Buchanan v. Buchanan(1909), 22 L.R.A. (N.S.) 454, and extended note.It is necessary in such cases to allege and prove that there is no administration pending and no administrator.Magel v. Milligan(1898), 150 Ind. 582, 50 N.E. 564, 65 Am. St. 382.So long as there is an administrator he is entitled to recover all debts due the estate, the claims of creditors being superior to the rights of heirs.Hall v. Brownlee(1902), 28 Ind.App. 178, 62 N.E. 457.The right of an administrator to sue can only be questioned by a plea in abatement.Michigan Trust Co. v. Probasco(1902), 29 Ind.App. 109, 63 N.E. 255;Hansford v. Van Auken(1881), 79 Ind. 157;McDowell v. North(1900), 24 Ind.App. 435, 55 N.E. 789;§ 2810Burns 1914, § 2292 R. S. 1881.The statute gives an administrator full power to maintain any suit in any court of competent jurisdiction in his name as administrator "for any demand of whatever nature due the decedent in his lifetime."§ 2808Burns 1914, supra.Administrators possess the same rights and powers with respect to the personal estate as the decedent in his lifetime.They can maintain actions for trespass or injuries committed either before or after the decedent's death, and have full authority to prosecute any suit which the ancestor could have prosecuted in his lifetime.Smith v. Dodds...