H.C. Smith Coal Co. v. Finley

• Decision Date: 23 October 1917
• Docket Number: No. 9309.,9309.
• Citation: 117 N.E. 506
• Parties: H. C. SMITH COAL CO. v. FINLEY.
• Court: Indiana Appellate Court

117 N.E. 506

H. C. SMITH COAL CO.

v.FINLEY.

No. 9309.

Appellate Court of Indiana, Division No. 2.

Oct. 23, 1917.

Appeal from Superior Court, Marion County; V. G. Clifford, Judge.

Suit by the H. C. Smith Coal Company against John D. Finley, doing business as the Mitchell Coal Company, in which a receiver was appointed. From an adverse judgment, plaintiff appeals. Affirmed.

Bernard Korbly, Willard New, Charles E. Henderson, and Clinton B. Marshall, all of Indianapolis, for appellant. Arthur R. Robison and Frank A. Symmes, both of Indianapolis, for appellee.

IBACH, P. J.

This is an appeal from the judgment of the court approving a receiver's final report and ordering distribution of the assets remaining in his hands.

The errors assigned and relied on for reversal are: That the trial court erred (1) in striking out appellant's motion to vacate its order entered in this cause on December 19, 1914; (2) in overruling appellant's motion for a new trial; and (3) in overruling its motion to modify the judgment herein.

Appellee has filed a motion to dismiss the appeal, in which he alleges certain reasons to the effect that this court is without jurisdiction to determine this appeal. The facts affecting such question are, in brief, as follows: On January 26, 1914, appellant, a wholesale dealer in coal and coke, brought suit on account against appellee, a retail dealer, and in its complaint asked, among other things, that a receiver be appointed to take charge of and to operate appellee's business. On the same day appellee appeared and joined in the prayer for a receiver. The court appointed a receiver, and directed him to take charge of and operate the business until further order. On September 11, 1914, the receiver filed his third current report, in which he alleged that the business could not be operated at a profit under existing conditions, and petitioned for an order to sell the assets thereof. On the same day appellee filed his verified application for an order setting apart to him out of such assets, or out of the proceeds derived from the sale thereof, an amount of property or money sufficient, with the property he then held, to make up a householder's exemption. The court ordered the property sold, and subsequently, on December 19, 1914, the same being the twelfth judicial day of the December term, 1914, entered an order, sustaining appellee's claim to an exemption, subject to certain prior claims. On February 18, 1915, the same being the sixteenth judicial day of the February term, 1915, appellant, without having made any objection or reserved any exception to the granting of said petition for exemption, filed a motion to vacate the said order. Appellee then filed a motion to strike appellant's motion from the files. This latter motion was sustained on March 20, 1915, and the receiver was ordered to file his final report, which he did. On April 16, 1915, appellee filed his objections to said final report, and on April 22d the cause was submitted to the court upon the final report and appellee's objections thereto. The report was approved, and appellant on that day filed its motion for a new trial.

[1] It thus appears from the record that appellant made no objection and reserved no exception to the court's ruling in sustaining appellee's claim for exemption at the time such interlocutory order was made; neither did it at that time file any motion for a new trial, but at a second subsequent term of court filed its motion to vacate said order without showing any excuse for not presenting its...