Greathouse v. McKinney

• Decision Date: 04 November 1942
• Docket Number: 27781.
• Parties: GREATHOUSE et al. v. McKINNEY.
• Court: Indiana Supreme Court

44 N.E.2d 344

220 Ind. 462

GREATHOUSE et al. v. McKINNEY.

No. 27781.

Supreme Court of Indiana

November 4, 1942

Appeal from Probate Court, Marion County; Smiley L Chambers, judge.

Joseph K. Brown and Cary Jacobs, both of Indianapolis, for appellants.

Joseph & Dann, of Indianapolis, for appellee.

SWAIM Judge.

The appellant, Archie Greathouse, Jr., as administrator of the estate of Archie Greathouse, deceased, obtained an order from the Probate Court of Marion County, for the sale of certain real estate to pay debts, which order provided that the real estate should be sold subject to a certain mortgage lien. The sale, however, was made free and clear of said lien and the full amount of the purchase price, without deducting the amount of said lien, was paid to the administrator.

The appellee, who was the owner of said lien, filed a petition in said probate court, naming said Greathouse as administrator and as an individual and his two attorneys parties defendant and alleging the above facts and also alleging that said administrator had failed and refused to account for, or pay to him, the amount of the proceeds of said sale which was subject to the payment of the petitioner's lien; that said administrator had petitioned the court for allowances of fees for his services and for the services of his attorneys; and that said administrator had paid such fees so allowed out of said fund which was subject to the said mortgage lien. The prayer of said petition asked that all orders entered in said estate, allowing fees to said administrator or his attorneys, or allowing expenses of sale of other real estate, be set aside; that said administrator and his attorneys be ordered to account for allowances paid to them, or in the alternative that a judgment be entered against said administrator, personally, and against said attorneys for the amounts paid to them as allowances; and that the petitioner have judgment against the administrator for $1,210.76, the amount of the balance of the proceeds of the sale of said real estate subject to the payment of said lien.

On this petition the court entered an order setting aside all orders theretofore entered in said estate for the payment of administrator's fees, attorneys' fees, premium on administrator's general bond and fees for abstracts of title. The order further provided that said Archie Greathouse, Jr., as administrator of said estate and in his individual capacity, be ordered and directed to file, on or before December 24, 1941, an amended report of the sale of said real estate and to show in said report the receipt of the purchase price of said real estate and the deposit, with the clerk of the probate court, of the amount of the purchase price less the amount paid on prior liens; and said order finally provided that in the event said Archie Greathouse Jr., should fail to file such report by a certain date or should fail to deposit said sum with said clerk the appellee was authorized and directed to institute an action against said Greathouse and his surety on the special bond filed in connection with the sale of said real estate.

This order was entered December 8, 1941. The appellants filed a motion for a new trial which was overruled March 6, 1942. The transcript of the record was filed in this court on June 3, 1942.

The appellee has entered his special appearance herein for the purpose of filing a motion to dismiss this appeal on the ground that the order appealed from does not constitute an appealable final judgment, but only an interlocutory order.

The appellants have not attempted to perfect the appeal as from an interlocutory order under § 2-3218, Burns' 1933, § 490 Baldwin's 1934. They did not file their assignment of errors and transcript 'within thirty (30) days from the date of the interlocutory order appealed from.' § 2-3219, Burns' 1933, § 491, Baldwin's 1934. The appellants insist, in their brief in opposition to the motion to dismiss, that the order in question constituted a final judgment from which a general appeal would lie.

To be appealable as a final judgment an order or judgment must be one which finally determines the rights of the parties in the suit, or in some distinct and definite branch of it, and which leaves no further question or direction for future determination by the court. Zumpfe v. Piccadilly Realty Co., 1938, 214 Ind. 282, 13 N.E.2d 715, 15 N.E.2d 362, 124 A.L.R. 1060, 1068; Home Electric Light & Power Co. v. Globe Tissue Paper Co., 1896, 145 Ind. 174, 44 N.E. 191; § 2-3201, Burns' 1933, § 471, Baldwin's 1934.

In Leach, Gdn., v. Webb, 1916, 62 Ind.App. 693, 113 N.E. 311, and in Fletches Trust Co., Gdn., v. Hines, Adm'r, 1936, 211 Ind. 111, 4 N.E.2d 562, 108 A.L.R. 930, it was held that an order directing a guardian to file an amended report and to pay certain funds back into the trust did not constitute a final judgment. See also Pfeiffer et al. v. Grane, Gdn., 1883, 89 Ind. 485. In Stout v. Stout, Adm'r, 1916, 68 Ind.App. 278, 114 N.E. 473, 131 N.E. 245, it was held that an order requiring an administrator to file an amended report was not a final judgment.

In the instant case the effect of the order appealed from was to annul the former orders of the court for...