Hack v. Bolint, 15159.

• Decision Date: 28 June 1934
• Docket Number: No. 15159.,15159.
• Citation: 101 Ind.App. 133,191 N.E. 177
• Parties: HACK v. BOLINT et al.
• Court: Indiana Appellate Court

101 Ind.App. 133

191 N.E. 177

HACK

v.BOLINT et al.

No. 15159.

Appellate Court of Indiana, in Banc.

June 28, 1934.

Appeal from Probate Court, Marion County; Smiley N. Chambers, Judge.

Proceeding by John Bolint, acting for himself and in behalf of all parties holding first lien 6 per centum real estate savings certificates and blue books issued by the Washington Bank & Trust Company, against Oren S. Hack, as receiver of the Washington Bank & Trust Company, and others, to seize certain securities in possession of the receiver. From an adverse judgment, the receiver appeals.

Reversed, with instructions.Chalmer Schlosser and Joseph Collier, both of Indianapolis, for appellant.

Carl E. Wood, William W. Hammond, C. Severin Buschman, and Leo. M. Gardner, all of Indianapolis, for appellees.

CURTIS, Judge.

On November 14, 1930, the circuit court of Marion county Ind., having jurisdiction of the parties and subject-matter of the action, adjudged the Washington Bank & Trust Company insolvent and appointed Brandt C. Downey as receiver to liquidate the assets and adjust the affairs thereof, and on February 28, 1933, the said Downey resigned as such receiver and on March 1, 1933, appellant Oren S. Hack was appointed his successor in trust, and is now the duly appointed, qualified, and acting receiver of said insolvent bank, and at the commencement of this proceeding had and now holds possession of the securities in controversy, as such receiver, under and by authority of the order of said circuit court.

This is a proceeding by the appellee John Bolint on behalf of himself and others to seize and wrest, by process of the probate court of Marion county, Ind., through its trustee, said securities from appellant Hack, receiver as aforesaid, who holds said securities under the order of the circuit court, which had assumed jurisdiction of the administration of the affairs of said insolvent, more than thirty months prior to the institution of this proceeding.

Appellee John Bolint by his petition alleged, in substance: That the Washington Bank & Trust Company was engaged in business as a bank and trust company, and in the conduct of its business it induced the appellee Bolint and numerous others to deposit money with it under a promise that the funds so deposited would be invested by it in first mortgages, and said first mortgages segregated and set aside to create a fund with which to pay first lien 6 per cent. real estate certificates; that said Washington Bank & Trust Company did invest said funds in first mortgage securities and did segregate and set securities aside for that purpose; that said Washington Bank & Trust Company became insolvent, and the circuit court adjudged said bank insolvent, and appellant Hack is now the receiver thereof and as such has possession of said mortgage securities; that said appellee Bolint and the other depositors to said fund are too numerous to bring before the court, and he prosecutes the proceedings in his own behalf and for the benefit of all depositors to said fund. The prayer is for the appointment of a successor trustee to said bank to take charge of said securities and to liquidate and distribute the same amongst the owners thereof. The appellant Hack, as receiver, answered the petition by a general denial. The issue of law and fact thus joined was submitted, without the intervention of a jury, to the court for trial and judgment.

The judgment of the probate court was that the appellant Hack, as such receiver, is not entitled to the custody of said securities; that a successor trustee should be appointed to take charge of said securities and administer the same, and appellee Union Trust Company of Indianapolis, Ind., was appointed successor trustee of said Washington Bank & Trust Company, to take charge of and administer said securities, apply the fund received to pay the claims of appellee Bolint and all depositors in his class, and pay any remainder to appellant Hack, as such receiver; and judgment was rendered against appellant Hack, as receiver, to surrender possession of said securities and for the costs of the proceedings. The appellant duly filed a motion for a new trial which was overruled with an exception, and this appeal was prayed and perfected.

The error relied upon by the appellant for a reversal of the judgment below is, that the...