Hopple v. Star City Elevator Co., 20403

• Court: Indiana Appellate Court
• Writing for the Court: FAULCONER; COOPER
• Citation: Hopple v. Star City Elevator Co., 140 Ind.App. 561, 224 N.E.2d 321 (Ind. App. 1967)
• Decision Date: 22 March 1967
• Docket Number: No. 20403,No. 1,20403,1
• Parties: George W. HOPPLE and Max Wentz, Appellants, v. STAR CITY ELEVATOR CO., Inc., Guy H. Wilson, Robert E. Ortman, Vernon Payne and the Pulaski Farm Bureau Co-Operative, Inc., Appellees

Page 321

224 N.E.2d 321

140 Ind.App. 561

George W. HOPPLE and Max Wentz, Appellants, v. STAR CITY ELEVATOR CO., Inc., Guy H. Wilson, Robert E Ortman, Vernon Payne and the Pulaski Farm Bureau Co-Operative, Inc., Appellees.

No. 20403.

Appellate Court of Indiana, Division No. 1.

March 22, 1967.

Rehearing Denied May 4, 1967.

Kizer & Neu, Plymouth, for appellants.

Joseph A. Noel, Kokomo, Paul W. Marrs, Indianapolis, for appellees.

FAULCONER, Judge.

Appellants appeal from an adverse judgment on their suit against appellees as proceedings supplementary to execution to collect a previously entered judgment rendered in favor of appellants against appellee, Star City Elevator Co., Inc.

Appellants' complaint for proceedings supplementary to execution, omitting caption and formal parts, is as follows:

'1. That on the 3rd day of January, 1962, the plaintiffs recovered a judgment in this the Marshall Circuit Court against the above named defendant, Star City Elevator Company, Inc. for $40,750.00 and_ _costs.

'2. That thereafter on the 23rd day of January, 1962, plaintiffs caused an execution to issue thereon to the Sheriff of Pulaski County being the county wherein said defendant, Star City Elevator Company, Inc. then and now has its principal place of business.

'3. That thereafter on the 25th day of April, 1962, the sheriff of Pulaski returned said execution wholly unsatisfied, endorsed 'no property of defendant subject to execution found on which to levy this writ.'

'4. That no part of said judgment has been paid.

'5. That Guy H. Wilson, Robert E. Ortman, and Vernon Payne have property in their possession belonging to the defendant, Star City Elevator Company, Inc., the exact nature and extent of said property being unknown to the plaintiffs, but within the exclusive knowledge of said Guy H. Wilson, Robert E. Ortman and Vernon Payne.

'6. That said Star City Elevator Company, Inc. transferred all of its remaining assets to the Pulaski Farm Bureau Cooperative prior to said judgment; and that said transfer is void in that the Star City Elevator Co., Inc. failed to comply with the Indiana Bulk Sales Law; and that Pulaski Farm Bureau Co-op has property in its possession belonging to the creditors of the Star City Elevator Company, Inc.

'7. That the defendant, Star City Elevator Company, Inc. has no other assets or property subject to execution.

'WHEREFORE, the plaintiffs request that an order issue to defendants requiring them to appear before this court on the 20th day of Sept., 1963, at 9:30 A.M., to answer under oath concerning the property of the Star City Elevator Company, Inc.

'I affirm under the penalties of prejury that the above and foregoing representations are true and correct to the best of my knowledge and belief.'

The cause was tried to the court, without a jury, and at the conclusion of all the evidence the court found in favor of defendants-appellees, and rendered judgment that plaintiffs-appellants take nothing by their complaint.

Appellants assign as error the overruling of their motion for new trial. All grounds for new trial except specification one, that '(t)he decision of the court is contrary to law', are waived for failure of appellants to support the same by cogent argument or citation of authorities as required by Rule 2--17(e) and (f), Rules of the Supreme Court, 1964 edition. Indianapolis Morris Plan Corp. v. Sparks (1961), 132 Ind.App. 145, 152, 172 N.E.2d 899, (Transfer denied).

Appellees having failed to file answer brief, we will reverse if appellants demonstrate prima facie error.

Appellants contend that the decision of the trial court is contrary to law for the reason that the undisputed evidence shows appellees, Guy H. Wilson, Robert E. Ortman and Vernon Payne, had funds in their hands belonging to the Star City Elevator Co., Inc.

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