Deming Hotel Co. v. Sisson

• Decision Date: 29 January 1940
• Docket Number: 27313.
• Citation: 24 N.E.2d 912,216 Ind. 587
• Parties: DEMING HOTEL CO. v. SISSON et al.
• Court: Indiana Supreme Court

24 N.E.2d 912

216 Ind. 587

DEMING HOTEL CO. v. SISSON et al.

No. 27313.

Supreme Court of Indiana

January 29, 1940

Appeal from St. Joseph Circuit Court; Dan Pyle, Judge.

Beasley O'Brien, Lewis & Beasley, of Terre Haute, Kelly &amp Ryan, of Valparaiso, J. Wilfred Niemiec, of South Bend, for appellant.

James J. McGarvey, of Valparaiso (Loring & Douglas and Owen L Crumpacker, all of Valparaiso, of counsel), for appellee.

SWAIM Judge.

This is an action by the Deming Hotel Company against Perry L. Sisson, Pioneer Company, an Indiana corporation, Effie M. Sisson, Perry L. Sisson, Jr., Maurine Sisson and Agnes M. Sisson, to enjoin the selling or transfer of stock of said Pioneer Company and to set aside, on the ground of fraud, certain transfers of said stock made by Perry L. Sisson to the other individual defendants.

The findings of fact disclose that on October 2, 1922, said Pioneer Company was incorporated and certain real estate owned by said Perry L. Sisson and Effie M. Sisson, his wife, as tenants by the entireties, together with other real estate owned by Perry L. Sisson individually, was conveyed to said corporation, all pursuant to a prior plan and agreement between said Sisson and his said wife, to provide for the distribution of the income from said real estate to his said wife and to their daughter, Agnes M. Sisson, during the lives of said wife and daughter, and then to his grandchildren, Perry L. Sisson, Jr., and Maurine Sisson. As another step in said plan said Sisson, his wife and daughter, on May 12, 1925, entered into certain written trust agreements with the First Trust Company of Valparaiso, Indiana, trustee, pursuant to which trust agreements all of the certificates of stock of said Pioneer Company were delivered to said trustee, endorsed in blank, and are still all so held by said trustee. All of the dividends and earnings from said stock have been distributed by said trustee to the beneficiaries under said trust, pursuant to the terms of said trust agreements. Although the stock certificates were issued in the name of Perry L. Sisson and the stock still stands in his name on the books of the corporation, he has never been in possession of said stock certificates since they were issued and has received no dividends or income whatsoever thereon. On June 11, 1930, the said Perry L. Sisson made a written assignment of any interest he might then have in said corporate stock of said Pioneer Company to his grandchildren, Perry L. Sisson, Jr., and Maurine Sisson. This assignment was entitled 'Assignment of Reversion' and it is the only assignment which the appellant is seriously attacking. Sisson received no monetary consideration for said assignment but made it for the purpose of 'carrying out and completing the agreement of trust made by and between the defendant, Perry L. Sisson, and his wife, the defendant, Effie M. Sisson, and for the consideration moving to the defendant, Perry L. Sisson, with love and affection.' At the time of said assignment the said defendant, Perry L. Sisson, had property in different places including certain stock in another company, the total value of which stock and other property is not shown by the findings.

In July, 1927, a partnership, of which the said Perry L. Sisson was a member, entered into a lease with the Deming Hotel Company by the terms of which the lessee (partnership) agreed to pay certain rentals over a period of ten years. On January 1, 1930, there was a default in the payment of the rent due under said lease and on September 22, 1932, judgment was rendered in favor of said Deming Hotel Company against said Perry L. Sisson for the sum of $10,625.25 in an action filed January 10, 1931, to recover the rental due on said lease. Two executions issued on said judgment were returned unsatisfied on account of there being no property found on which to make a levy.

There was no attempt on the part of the plaintiff, Deming Hotel Company, to show the amount of the total indebtedness of said partnership or to show the value of the assets of said partnership.

The court expressly found that at the time of the assignment by said Sisson to his grandchildren he did not know of the default in the payment of the rental under said lease; and that the assignment to his grandchildren was made without intent to defraud this plaintiff.

The court's conclusions of law were (1) that the law in this case is with the defendants, (2) that the judgment of the plaintiff against Perry L. Sisson is not a lien on said stock, (3) that the rights of the defendants Effie M. Sisson, Perry L. Sisson, Jr., and Maurine Sisson are superior to the judgment of the plaintiff, and (4) that said three last named defendants are the real owners of said stock. Judgment was entered for said defendants accordingly.

The appellant assigned as error the court's four conclusions of law and the overruling of the motion for new trial, which assigned eleven reasons for a new trial.

The fifth reason assigned for a new trial was the alleged error of the court in sustaining the objection of the defendants to a question asked of the defendant, Perry L. Sisson. Any possible question on this assignment has been waived by failing to consider it in the Points and Authorities of appellant's brief.

The last six grounds of said motion for new trial questioned the action of the trial court in the admission of certain evidence. Each of said grounds in said motion sets out the question, states that the witness was permitted to answer the question over the objection of plaintiff, and that an exception was taken to the court's ruling, but fails to show the grounds of the objection or the answer given, if any. In the case of Brown v. State, 1939, Ind.Sup. 23 N.E.2d 267, this court held that when error is predicated on the admission of testimony the motion for a new trial must set out the question and answer, if there was one, or the substance thereof, the objection urged below, the ruling of the court thereon and that an exception to such ruling was taken. Since the ...