First Nat. Bank of Vincennes v. Gregg

• Decision Date: 29 January 1930
• Docket Number: No. 13428.,13428.
• Citation: 91 Ind.App. 405,169 N.E. 691
• Parties: FIRST NAT. BANK OF VINCENNES v. GREGG et al.
• Court: Indiana Appellate Court

91 Ind.App. 405

169 N.E. 691

FIRST NAT. BANK OF VINCENNES

v.GREGG et al.

No. 13428.

Appellate Court of Indiana, in Banc.

Jan. 29, 1930.

Appeal from Greene Circuit Court; Thomas Van Buskirk, Judge.

Petition by the First National Bank of Vincennes for permission to file a claim with the receiver of the Elliston Gravel Company, opposed by Claud E. Gregg and others. From a judgment denying the petition, petitioner appeals. Reversed.

Kessinger & Hill, of Vincennes, for appellant.

Allen G. Pate, Cyrus E. Davis, Will R. Vosloh, and Webster V. Moffett, all of Bloomfield, for appellees.

LOCKYEAR, J.

This is a proceeding arising in the matter of the receivership of the Elliston Gravel Company, wherein the First National Bank of Vincennes, appellant, filed its petition for permission to file with said receiver a claim upon six promissory notes executed by the Elliston Gravel Company to the appellant. The court refused to grant said petition and refused to permit the appellant to file its claim with the receiver.

The errors relied upon for reversal are the sustaining of the objections of certain creditors to the petition of the appellant for leave to file its claim, the overruling of the petition and application of the appellant for leave to file its claim, and in rendering judgment against appellant on its said petition.

On July 10, 1926, the transcript shows that the receiver filed and presented to the court a motion asking the court to fix the time for filing of claims in this receivership. On the same day the transcript shows that the court sustained the motion and fixed the time for filing of claims in this receivership at 60 days from that date, and ordered the receiver to give due and legal notice thereof, and the only notice given was by publication in the Bloomfield News.

On the 28th day of November, 1927, the appellant filed its petition for permission to file its claim with the receiver.

The petitioner further shows that the first information it had that a time limit for the filing of claims had been fixed was during the week beginning November 14, 1927, and that it makes and files this petition at the earliest possible date after it received notice that a time limit had been fixed, and filed affidavits of W. H. Hill, C. B. Kessinger, and J. B. La Plant in support thereof.

Objections filed by certain creditors to the claim recite, among other facts, that, in accordance with said order, notice thereof was given by the publication of a notice in the Bloomfield News, a weekly newspaper of general circulation printed and published in the town of Bloomfield, in Greene county, state of Indiana, on July 15, 22, 29, and August 5, 1926, respectively, and that due proof of the publication was filed in said cause and court September 22, 1926, which said notice and proof of its publication is made a part thereof; that, notwithstanding the facts above mentioned, neither the First National Bank of Vincennes nor its attorneys made any attemptto file its claim in this cause or with the receiver until November 3, 1927, and never made application for permission to file it until November 28, 1927; that during all the time from the appointment of the receiver March 19, 1926, until the filing of the application November 28, 1927, the law firm of Kessinger & Hill were attorneys for the receiver in this cause, and knew of the existence of the claim sought to be filed, and knew of the appointment of the receiver, and were compelled to take notice of the action of this court in this cause in all things, including the fixing of the time in which to file claims; that the receiver has had in his hands and available for distribution to the creditors of the Elliston Gravel Company a sum of more than $10,000 since July 14, 1927, and that both the receiver and Kessinger & Hill, his attorneys, have been requested prior to the 1st of September, 1927, to declare a dividend to the creditors and distribute the funds available for that purpose; that no dividend has been declared or paid, and that no report or recommendation of claims filed or as to the allowance of the same has been...