Fetter v. Powers

• Decision Date: 08 April 1948
• Docket Number: 17668.
• Citation: 78 N.E.2d 555,118 Ind.App. 367
• Parties: FETTER et al. v. POWERS et al.
• Court: Indiana Appellate Court

78 N.E.2d 555

118 Ind.App. 367

FETTER et al. v. POWERS et al.

No. 17668.

Appellate Court of Indiana, in Banc.

April 8, 1948

Finley & Finley and Ralph W. Probst, all of Kendallville, for appellants.

Gleason & Gleason, of Angola, and LeRoy K. Schultess, of LaGrange, for appellee.

HAMILTON Judge.

This is an appeal from a judgment in favor of the plaintiff in an action to recover damages upon an attachment bond executed by the appellants to obtain the issuance of a writ of attachment, and which writ of attachment was alleged to have been wrongful and oppressive.

The facts involved are as follows: On August 21, 1942 appellants, Anna Fetter and Estate of Archy Campbell, doing business as Campbell & Fetter, Bankers (a private bank at Kendallville, Indiana), filed their action before one LeRoy Starmer, a Justice of the Peace in Wayne Township, Noble County, Indiana, against Milo Powers and Addie Powers residents of Milford Township, LaGrange County, Indiana, to recover upon a promissory note. At the time of filing the action the plaintiffs filed an affidavit in attachment alleging that the defendant, Milo Powers, was a non-resident of the state of Indiana, and they also filed their written undertaking and bond in attachment in said action, which bond was signed by Campbell & Fetter Bankers, by Donald M. Campbell, its president. The bond was approved by the Justice of the Peace, and a writ of attachment duly issued and delivered to one Lester Workman, a special constable, to be served. Said Workman, as special constable, with the assistance of one Jay C. Williams, a disinterested householder of Noble County, executed said writ of attachment and levied upon a valuable race horse, known as Hal C., one four-door Oldsmobile sedan, one set of racing harness, and one sulky, belonging to Milo Powers, and made due return upon said writ of attachment. Thereafter, on August 26, 1942, a default judgment was rendered against the defendants, Milo Powers and Addie Powers, in the sum of $199.99. As a part of the default judgment the Justice of the Peace ordered that the above mentioned attached property, or enough thereof as necessary to pay and satisfy the judgment and costs, be sold as other personal property is sold on execution.

On August 27, 1942, the Justice of the Peace issued and delivered to said Workman, as special constable, an order of sale directing and commanding said special constable to sell and dispose of as upon execution the goods and chattels attached under the order of attachment issued in said action, or so much as necessary to make the sum of $199.99, with interest and costs. Thereafter, on the ___ day of February, 1943, said special constable Workman proceeded across the county line between Noble and LaGrange Counties to the home of Milo Powers in Milford Township, LaGrange County, and seized and took into his possession the race horse, Hal C., and removed him into Noble County, where he was kept at a boarding stable for a period of six weeks, until April, 1943, during which period of time it was claimed said race horse received injuries which rendered him worthless as a race horse. In March, 1943, Milo Powers filed in the Noble Circuit Court his verified complaint to vacate and set aside the default judgment rendered against him by said Justice of the Peace on August 26, 1942, and to enjoin the sale of the personal property levied upon under the writ of attachment and order of sale entered August 27, 1942, heretofore described. Thereafter such proceedings were duly taken in said action as resulted in a judgment vacating and declaring null and void said default judgment and all other proceedings had therein relative to the attachment and levy and enjoining the threatened sale of the race horse Hal C. Thereafter said Milo Powers instituted this action as heretofore stated.

Issues were joined upon a second amended complaint and a second amended answer in one paragraph, admitting and denying as provided by Rule 1-3. The venue having been changed to the LaGrange Circuit Court, the cause was submitted for trial to a jury, which returned its general verdict in favor of the plaintiff and assessed his damages in the sum of $1500. Judgment was rendered upon the verdict, and upon the overruling of a motion for a new trial, this appeal was perfected.

After the trial and verdict of the jury, the plaintiff, Milo Powers, died on April 4, 1947, and upon proper motion the appellee LeRoy K. Schultess, administrator of the estate of Milo Powers, deceased, was substituted as party plaintiff in said action.

The errors assigned and not waived are: 1. That the court erred in sustaining a demurrer to appellants' plea in abatement. 2. That the court erred in overruling appellants' demurrer to the second amended complaint. 3. That the court erred in sustaining a demurrer to the second paragraph of appellants' answer. 4. That the court erred in striking out appellants' cross-complaint and answer of set-off. 5. That the court erred in overruling appellants' motion for a new trial. These alleged errors will be considered and discussed in the order above mentioned.

In their plea in abatement filed in the second amended complaint, which named as the defendants therein 'Anna Fetter and Estate of Archy Campbell, doing business as Campbell & Fetter, Bankers; Campbell & Fetter, Bankers; Donald M. Campbell,' the defendants alleged in substance that the plaintiff had totally abandoned the theory of the original complaint, which was based upon a claimed illegal judgment and unlawful detention of personal property under the alleged illegal judgment; that the second amended complaint is based upon the theory of a wrongful attachment and is an action upon the attachment bond; that the defendants named in the second amended complaint are not the defendants named in the original action; that no process of summons has been issued against any of the defendants named in the amended complaint and by reason thereof no defendant has been brought into court.

Under Proposition I and points and authorities thereunder appellants claim no action was ever commenced against the estate of Archy Campbell, one of the defendants; that no claim had ever been filed against the estate in the clerk's office wherein said estate was pending; and no summons was ever issued against the estate or its representative upon the filing of the amended complaint and therefore said defendant estate was never properly brought into court and is not a proper party defendant in the action, citing § 2-802, Burns' 1946 Repl., and § 6-1001, Burns' 1933.

The record discloses that the defendants to the second amended complaint, viz.: Anna Fetter and Estate of Archy Campbell, doing business as Campbell & Fetter, Bankers; Campbell & Fetter, Bankers; Donald M. Campbell; were on and prior to August 21, 1942, engaged in the business of conducting and operating a private bank at Kendallville, Indiana.

Section 18-2711, Burns' 1933, which is § 12, Ch. 113, Acts 1907, entitled 'An act to regulate and supervise the business of banking by individuals, partnerships or unincorporated persons,' expressly provides that 'Any bank organized and doing business under the provisions of this act shall have the right to sue and be sued under the name under which such bank is authorized to transact its business. Service of summons or other process of court upon the officer or agent in charge of the business of such bank shall be good and sufficient service to give the court jurisdiction, and any judgment obtained against such bank shall be valid and binding against all the persons interested therein.'

In view of said statute and the facts in this cause the court did not err in sustaining the demurrer to said plea in abatement. New Amsterdam Casualty Co. v. New Palestine Bank 1915, 59 Ind.App. 69, 76, 107 N.E. 554; Kimmel v. Captain 1940, 107 Ind.App. 621, 625, 24 N.E.2d 435.

Under Proposition III of appellants' brief, we find the following statement: 'The appellants rely on their Assignment of Error No. 3 to-wit: 'The Court erred in overruling the demurrer filed by defendants to plaintiff's second amended complaint.' The appellants also rely under Proposition III upon their Assignment of Error No. 8, to-wit: 'The Court erred in overruling defendant's motion for a new trial' and with reference to the following causes in said motion for a new trial to-wit: '4. The Court erred in overruling the motion of the defendants, at the close of plaintiff's evidence, for a directed verdict for the defendants.' '5. The Court erred in overruling at the close of the evidence given in this cause, the written motion by the defendants, requesting the Court to direct a verdict for the defendants.' '6. The verdict of the jury is not sustained by sufficient evidence.' '7. There is no evidence to support said jury verdict.' '8. The verdict of the jury is contrary to law.' Appellants' assignment of error No. 3 and Causes No. 4, 5, 6, 7 and 8 of Assignment of Error No. 8 will be discussed under Proposition III (assignment of error No. 8 being hereinafter also treated under other propositions).'

It will be noted that the above quotation from appellants' brief involves two different propositions, to wit: 1. A question as to the sufficiency of a pleading--the second amended complaint; 2. The question as to the sufficiency of the evidence to sustain the allegations of the second amended complaint. Both propositions are so commingled in the points and authorities on pages 108 to 122, inclusive, of appellants' brief that we are unable to differentiate and determine the specific points and authorities intended to be in support of the alleged error in the ruling of the court in overruling the demurrer to the second amended complaint.

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