Flanders v. Ostrom, 25597.
| Decision Date | 22 November 1933 |
| Docket Number | No. 25597.,25597. |
| Citation | 187 N.E. 673,206 Ind. 87 |
| Parties | FLANDERS et al. v. OSTROM et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; B. K. Elliott, Judge.
Action by Loyal H. Britton and Bernard Stuvel, doing business under the name and style of Britton & Stuvel, against William H. Flanders and another, wherein Henry E. Ostrom was appointed receiver for defendants, and wherein cross-complaints were filed. From an order denying a motion for new trial on the receiver's final report and denying a motion to vacate the order approving the receiver's final report, William H. Flanders and another appeal.
Affirmed.
Wm. V. Rooker, of Indianapolis, for appellants.
Fenton, Steers, Beasley & Klee, of Indianapolis, for appellees.
The appellees Britton and Stuvel, doing business under the name and style of Britton & Stuvel, brought this action to recover a judgment against the appellants Flanders and Flanders for work and material furnished under a written contract for the installation of the plumbing and heating in a dwelling house being erected by appellants and to foreclose a mechanic's lien. Later an amended complaint was filed setting out substantially the same facts as alleged in the original complaint, and in addition other facts upon which to base a request for the appointment of a receiver. The court, after notice to the appellants, and while appellants were represented in court by their attorney, heard evidence, and found that a receiver should be appointed, and Henry E. Ostrom was appointed, received, and duly qualified. The evidence heard at the appointment of the receiver has not been brought into the record, but the final judgment shows at the time of the appointment of the receiver there were unpaid valid mechanic's liens in the sum of $5,247.50, and a mortgage in the sum of $907.50. No exceptions or appeal was then taken to the appointment of the receiver. There were various cross-complaints filed. The dwelling, upon proper petitions by the receiver, was completed. The court found that certain appellees held valid mechanic's liens against the property, and rendered judgments in the amount of the liens, and transferred same to the funds arising from the sale of the property. The property was first sold to one Henry G. Blum, who deposited $500, but he refused to proceed with the purchase of the property, and it was then sold to the Home Development Company.
The receiver filed a final report, which was approved, and ten days given to file a bill of exceptions. The appellants filed a motion for a new trial on the receiver's final report, and a motion to vacate the order approving the same. The motion for a new trial and to vacate was overruled. The appellants filed in the Marion superior court a suit to review all the errors assigned, as claimed by appellees, in the first eighteen assignments of error in the instant case. The court refused a review, and the case was appealed to this court, being cause No. 25218, and the appeal was dismissed. The appellees insist that the questions raised in the first eighteen assignments of error are res adjudicata.
There were twenty-six assignments of error, covering sixteen pages. We do not feel that we are justified in setting out in full each assignment. These assignments in many respects are duplications, and the attorney for the appellants could have saved this court much labor and time if he had prepared his assignments briefer and more to the point.
We will give very succinctly what each assignment contains:
(1) That the court erred in sustaining the petition for the appointment of a receiver, that the court was without jurisdiction of the subject-matter, and that said order takes the property of appellants without due process of law.
(2) That the court erred in overruling the demurrer to the amended complaint.
(3) That the court erred in permitting the receiver to borrow money to complete the dwelling.
(4) This assignment same in substance as No. 3.
(5) That the court erred in overruling exceptions filed May 19, 1925, to the report and petition of receiver to sell real estate.
(6) Same in substance as No. 5.
(7) That the court erred in overruling demurrer of appellants to second paragraph of answer of receiver to the exceptions of appellants to the report and petition of said receiver to sell real estate.
(8) That the court erred in sustaining the report and petition of receiver to sell real estate, that the subject-matter was not within the jurisdiction of the court, and that property of appellants was taken without due process of law.
(9) That the court erred in allowing attorneys fees upon certain judgments.
(10) Same in substance as No. 8.
(11) That the court erred in its judgment of June 8, 1925, for the reason that said judgment is based upon a general finding upon submission of divers several actions for debt as at common law, and that same are personal judgments as for debt at common law, and are not any one of them in rem and no adjudication of the foreclosure of any lien of any kind.
(12) That the court erred in its order of June 26, 1925, in modifying the order of sale of real estate.
(13) That the court erred in allowing certain fees to the receiver and his attorneys.
(14) That the court erred in requiring the appellants to vacate their premises.
(15) That the court erred in its order and judgment of July 8, 1925, in overruling motion for a new trial.
(16) That the court erred in its order and judgment of July 17, 1925, denying the sufficiency of the return of appellants to the order to vacate premises.
(17) That the court erred in its order and judgment of July 17, 1925, sustaining petition of receiver to wreck a small house on the premises.
(18) Same as 12 except as to date of judgment.
(19) That the court erred in its judgment of June 3, 1926, in sustaining the petition to vacate the order of acceptance of Henry G. Blume, and to forfeit his deposit of earnest money.
(20) That the court erred in its order and judgment of June 3, 1926, sustaining the report and petition of receiver in accepting proposal of Home Development Company to purchase the real estate in question.
(21) Same in substance as (20).
(22) Same in substance as (20) and (21).
(23) That the court erred in its order and judgment of September 9, 1927, striking from the files the exceptions of appellants to the answer of Henry E. Ostrom, as receiver, to the petition of Henry G. Blume.
(24) That the court erred in its order and judgment of September 9, 1927, approving final report of receiver.
(25) That the court erred in its order and judgment of November 4, 1927, overruling the motion of appellants to vacate the order and judgment of September 9, 1927, approving the final report of the receiver.
(26) That the court erred in its order and judgment of November 4, 1927, in overruling the motion for a new trial.
Practically all the assignments of error contain the provision that the subject-matter was not within the jurisdiction of the court, and that the judgments and orders taken were void, and that appellants' property was taken without due process of law, and in denial of the equal protection of the law all in contravention of the Fourteenth Amendment of the Constitution of the United States.
The motion for a new trial sets out six reasons, and to sustain the reasons assigned the appellants give in substance the matter contained in their twenty-six assignments of error.
The amended complaint set out the mechanic's lien held by the plaintiff as well as other liens held by other parties; also first and second mortgages. It also alleged that the dwelling house was in an incompleted state; that it would take from $1,500 to $2,000 to complete the house, and that the appellants had no money to complete the house nor to pay off the liens on the same, and that they were unable to secure any money for such purposes; that, in addition to plaintiff's action for a foreclosure of their lien and sale of the real estate, other lienholders have intervened and asked for the sale of the real estate; that, if said house was sold in its incomplete state, it would not sell for enough to pay the liens, and would be at a great sacrifice and injury to all concerned. It further alleged that it would be to the advantage of all concerned that the house be completed and that a receiver be appointed to take charge of said house, borrow sufficient money to complete it, and sell the same and preserve the assets thereof for distribution.
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...he does not in fact appear or have actual notice thereof. Clouser v. Mock, (1959) 239 Ind. 143, 155 N.E.2d 745; Flanders v. Ostrom, (1933) 206 Ind. 87, 187 N.E. 673; Lyerson v. Hogan, (1982) Ind.App., 441 N.E.2d 683; Guydon v. Taylor, (1945) 115 Ind.App. 685, 60 N.E.2d 750. Services of summ......
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...cause down to and including the judgment, although he does not in fact appear and has no actual notice thereof.' Flanders v. Ostrom, 1933, 206 Ind. 87, 97, 187 N.E. 673, 676; Burnside v. Ennis, 1873, 43 Ind. 411, 414; also see: 66 C.J.S. Notice § 12, p. 648. However, assuming the appellants......
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Lyerson v. Hogan
...without special or additional notice." Clouser, et al. v. Mock, et al., (1959), 239 Ind. 143, 155 N.E.2d 745, 747; Flanders v. Ostrom (1933), 206 Ind. 87, 187 N.E. 673; Guydon v. Taylor (1945), 115 Ind.App. 685, 60 N.E.2d 750; 22 I.L.E., Notice Sec. 3. This principle was confirmed in State ......
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