H. C. Smith Coal Company v. Finley
| Decision Date | 27 April 1921 |
| Docket Number | 23,958 |
| Citation | 131 N.E. 5,190 Ind. 481 |
| Parties | H. C. Smith Coal Company v. Finley et al |
| Court | Indiana Supreme Court |
From Marion Superior Court (93,602); V. G. Clifford, Judge.
Action by the H. C. Smith Coal Company against John D. Finley, doing business under the name of the Mitchell Coal Company, and others, in which a receiver was appointed. From a judgment approving the receiver's final report and directing the distribution of assets remaining in his hands, the plaintiff appeals. (Transferred from the Appellate Court under § 1394 Burns 1914, Acts 1901 p. 565.)
Reversed.
Bernard Korbly, Willard New, Charles E. Henderson and Clinton B Marshall, for appellant.
Arthur R. Robinson and Frank A. Symmes, for appellees.
OPINION
This is an appeal from a judgment of the Marion Superior Court approving a receiver's final report and directing distribution of the assets remaining in his hands. Preliminary to a consideration of the case on its merits we are confronted with a motion to dismiss the appeal filed by appellee Finley, hereinafter referred to as the appellee. This motion, in effect, presents four questions of law. As pertinent to the issues thus raised, it is proper at this time to review briefly the proceedings had in the lower court.
On January 26, 1914, appellant brought suit against appellee, a retail dealer in coal and other fuel, and alleged facts showing appellee's indebtedness to it and other creditors, the general condition of his business, and asking for the appointment of a receiver to take charge of and administer said business for the best interests of all concerned. Appellee appeared and filed an answer in which he admitted in substance the facts set out in the complaint, including his indebtedness to appellant, and joined in the prayer for the appointment of a receiver. A hearing was had which resulted in the appointment of a receiver who qualified and took charge of appellee's business. On September 11, 1914, the receiver filed a current report in which he asserted that the business could not be operated at a profit under existing conditions and prayed the court for an order directing him to sell the assets of the business and distribute the proceeds thereof. On the same day appellee filed a verified petition in which he asked for an order setting over to him out of the assets in the hands of the receiver, or out of the proceeds to be derived from the sale thereof, an amount of property or money sufficient, with the property which he then held, to make up a householder's exemption. As a part of this petition, appellee filed an inventory in which he listed all the property then owned by him, but did not inventory his property as of any other date. The court directed a sale of the property in the hands of the receiver and later, on December 19, 1914, entered an order sustaining appellee's claim to an exemption, subject to certain claims against the receivership. These claims were not judicially approved nor their amounts fixed. At a subsequent term of court, appellant, without having reserved an exception to the above order, filed a motion to vacate the same, on grounds similar to those which are urged in support of the present appeal. Over appellant's objection and exception the motion to vacate was stricken from the files at the request of appellee and, on April 22, 1915, the cause was submitted to the court on the receiver's final report and appellee's exceptions thereto. The report was approved and the judgment entered from which this appeal is prosecuted.
The principal contention made in support of the motion to dismiss rests on the assumption that, because appellant's claim has not yet been reduced to a judgment, the decree of April 22, 1915, is interlocutory in character rather than final, and no appeal is authorized therefrom. As stated in Frankfort Construction Co. v. Sims (1916), 185 Ind. 71, 73, 113 N.E. 298: Cases of the latter class form an apparent rather than an actual exception to the general rule, since a final judgment rendered therein serves fully to dispose of a distinct branch of the proceeding (Elliott, Appellate Procedure § 99), and such judgments have frequently been recognized as affording the proper basis for an appeal. Galvin v. Taylor (1916), 184 Ind. 736, 741, 112 N.E. 513; Hamrick, Trustee, v. Loring (1896), 147 Ind. 229, 231, 45 N.E. 107; Voorhees v. Indianapolis Car, etc., Co. (1895), 140 Ind. 220, 226, 39 N.E. 738; National Surety Co. v. Button (1908), 41 Ind.App. 301, 306, 83 N.E. 644; Williams v. Morgan (1883), 111 U.S. 684, 699, 4 S.Ct. 638, 28 L.Ed. 559.
As applied more particularly to facts such as are here in issue, it has been expressly decided in a number of cases that in a receivership suit, a decree which settles the receiver's accounts, approves payments made by him, determines his compensation and directs distribution of the surplus, is a final decree, at least for the purposes of appeal, without regard to the status of the main action. Shannon v. Shepard Mfg. Co. (1918), 230 Mass. 224, 229, 119 N.E. 768; Chandler v. Cushing-Young Shingle Co. (1895), 13 Wash. 89, 95, 42 P. 548; Los Angeles v. Los Angeles, etc., Co. (1901), 134 Cal. 121, 124, 66 P. 198; Patterson v. Ward (1897), 6 N.D. 359, 71 N.W. 543; State, ex rel. v. Judge (1884), 36 La. Ann. 981, 983.
Under these authorities, it is clear that the decree entered in this case on April 22, 1915, operated as a complete judicial determination of a distinct branch of the proceeding and was therefore properly appealable as a final judgment. This conclusion serves also to dispose of appellee's further contention that the appeal was not perfected in time, since that contention is based on the theory that this is an attempted appeal from an interlocutory order. As actually perfected, the proceeding constitutes a term-time appeal from a final judgment and it was not necessary for appellant to join any of its coparties to the record below. § 675 Burns 1914, Acts 1895 p. 179; § 679 Burns 1914, § 638 R. S. 1881; Ward v. Yarnelle (1910), 173 Ind. 535, 541, 91 N.E. 7; Pein v. Miznerr (1908), 170 Ind. 659, 663, 84 N.E. 981.
The remaining grounds of the motion to dismiss do not require extended discussion. The fact that appellant is a bona fide claimant to the fund in controversy is sufficient to show an interest in the subject-matter (Polk v. Johnson [1906], 167 Ind. 548, 551, 78 N.E. 652, 79 N.E. 491), while the filing of appellant's motion for a new trial immediately following the decision of the court and prior to the entry of judgment, was not improper practice. The statutory requirement is that the motion shall be filed within thirty days "from the time when the verdict or decision is rendered" (§ 587 Burns 1914, Acts 1913 p. 848), and the actual entry of judgment has no bearing thereon. The motion to dismiss is overruled.
The order entered by the trial court on December 19, 1914, did not determine any of the amounts to be paid by the receiver and was in the nature of an interlocutory order fixing priorities. As such, it might properly have been set aside on appellant's motion, if found to be erroneous (Ryon, Rec., v. Thomas [1885], 104 Ind. 59, 63, 3 N.E. 653; Johnson v. Moore [1887], 112 Ind. 91, 92, 13 N.E. 106), and the reservation of an exception to the original order was not a prerequisite to the motion to vacate, although it was essential to the review of such interlocutory ruling on appeal. However, as is stated in Ryon, Rec., v. Thomas, supra, 62, "interlocutory orders, when within the jurisdiction of the court, are, as to all matters properly embraced within them, of binding authority so long as they remain in force, but they are within the control of the court making them until the proceeding or cause in which they are made is finally disposed of." See also: Fourniquet v. Perkins (1853), 57 U.S. (16 How.) 82, 85, 14 L.Ed. 854; Webb v. Buckelew (1880), 82 N.Y. 555, 560; N. K. Fairbank Co. v. Windsor (1903), 124 F. 200, 202, 61 C. C. A. 233; Agnew v. Omaha Nat. Bank (1903), 69 Neb. 654, 663, 96 N.W. 189.
In the present case, the exceptions filed by appellee to the receiver's final report covered the entire period of his administration, and, in passing on the issues thus presented, the trial court modified the effect of its interlocutory order with regard to certain claims against the receivership and held that appellee was entitled "to receive the balance of said assets under his claim of exemption," rather than under the interlocutory ruling. No payments had been made to appellee under the original order, and as appellant did not question any item in the receiver's account, it was not required to file exceptions thereto. The decision of the court on the exceptions filed by appellee embraced substantially every issue in the case and superseded its earlier order, and appellant's exceptions to that decision, and to the ruling on its motion for a new trial, are sufficient properly to present every question which it now seeks to raise.
It will not be necessary to notice all the questions sought to be presented by the motion for a new trial. In brief, it is appellant's contention that...
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