Isaacs v. Fletcher American National Bank

Citation185 N.E. 154,98 Ind.App. 111
Decision Date29 March 1933
Docket Number14,359
PartiesISAACS, TRUSTEE v. FLETCHER AMERICAN NATIONAL BANK
CourtCourt of Appeals of Indiana

185 N.E. 154

98 Ind.App. 111

ISAACS, TRUSTEE
v.
FLETCHER AMERICAN NATIONAL BANK

No. 14,359

Court of Appeals of Indiana

March 29, 1933


Rehearing denied June 20, 1933.

Transfer denied January 26, 1934.

From Hendricks Circuit Court; Charles V. Sears, Special Judge.

Action by Moe A. Isaacs, Trustee, against Fletcher American National Bank for conversion. From a judgment for defendant, plaintiff appealed.

Reversed.

Julius C. Travis, Bernard Stroyman, Milton B. Hottel, Sol H. Esarey, and Otis E. Gulley, for appellant.

Julian C. Ralston and Van Nuys, Barnard & Walker, for appellee.

OPINION

[98 Ind.App. 113] PER CURIAM.--

This was an action for conversion brought by the appellant against the appellee. The issues were made upon the appellant's amended complaint in one paragraph, the appellee's answer in two paragraphs, the first of which was a general denial, and the appellant's reply in general denial to the appellee's second paragraph of answer. There was a trial before the court with the honorable Charles V. Sears sitting as special judge, resulting in a finding and judgment against the appellant from which judgment this appeal was prayed and perfected.

The appellant assigns as error the ruling of the court upon his motion for a new trial; the overruling of his motion to dismiss; and the overruling of his verified motion to set aside the entries of July 5th and September 16th, respectively.

The appellee has filed a motion to dismiss this appeal for the alleged reason that [185 N.E. 155] the assignments of error constitute a cause or causes for a new trial and that the motion for a new trial was not filed within the time fixed by law and that therefore no questions are presented. In both of these contentions the appellee is in error. The ruling of the court on the motion of the appellant to dismiss his cause of action can only be assigned as an independent assignment of error. This was done in the instant case. Having properly assigned such ruling as an independent assignment of error, the motion to dismiss the appeal is now overruled. See Galey v. Mason (1909), 174 Ind. 158, 91 N.E. 561, Ann. Cas. 1912C 1290. Benbow v. Gray et al. (1923), 193 Ind. 269, 128 N.E. 607.

The other assignments of error will be taken up hereinafter.

The motion for a new trial contained 20 causes or grounds, the first four of which are as follows:

[98 Ind.App. 114] 1. The decision of the court is not sustained by sufficient evidence.

2. The decision of the court is contrary to law.

3. The court erred in overruling this plaintiff's motion for judgment of dismissal.

4. The court erred in rendering judgment in said cause on the 16th day of September, 1930.

The other 16 causes or grounds each related to rulings of the court in the admission or rejection of evidence. For the purpose of this opinion these need not be set out, and owing to the conclusions we have reached they need not be considered herein, and we express no opinion as to the correctness of any of such rulings. If such questions arise in a retrial of the case such former rulings shall in no wise bind the trial court.

It is also to be noted that some independent assignments of error are included in the motion for a new trial, but they are also assigned as independent assignments of error. They will be treated as surplusage in the motion.

The appellant's contention as to the orders of July 5th and of September 16th, respectively, of which complaint is made as well as his contention with respect to his motion to dismiss his cause of action, is set forth in his verified motion filed in said cause on October 4, 1930, which verified motion, omitting formal parts, is as follows:

"Comes now M. A. Isaacs, the plaintiff in the above entitled cause of action, and respectively shows to the Court:

'That on May 26, 1930, at the conclusion of the trial of said cause, the parties hereto agreed to brief the same and have an oral argument thereon at a date to be later set by the Court; that some time in June, 1930, the exact date of which is unknown to this plaintiff, the parties hereto agreed that in the event said oral argument should take [98 Ind.App. 115] place on July 7th, the record in said cause should be made as of July 5th, 1930.

"The plaintiff further respectfully shows to the Court that thereafter, pursuant to an order made by and duly entered on the order books of said Hendricks Circuit Court, said Court adjourned for vacation on July 5, to the first Monday in September, and that said Court did not convene until the first Monday in September.

"The plaintiff further alleges that said oral argument did not take place on July 7th, but instead was had on July 14, 1930; that at the conclusion of said oral argument the Court stated that he was of the opinion that there was a partnership between this plaintiff, Kane, and certain other persons, although he was not sure whether it was of a commercial or non-commercial character; that it was of the opinion that the defendant was justified in violating plaintiff's instructions and 'that will probably be the judgment' in said cause; that this was all that the Court then did or stated, in said cause.

"The plaintiff further alleges that at the conclusion of said argument, on the 14th day of July, the parties hereto, by and through their counsel, Otis E. Gulley, of Danville, and Bernard Stroyman, of Indianapolis, representing the plaintiff herein, and Julian Ralston, of Indianapolis, and Mr. Stevenson, of Danville, representing the defendant, all of whom were then and there present, agreed that the record in said cause shall be made at the next--September--term of Court, to which the Court then and there consented.

"The plaintiff further alleges that thereafter, to wit, on the 22nd day of July, 1930, the plaintiff herein filed in this Court, with the Clerk thereof, pursuant to Section 355, Burns 1926, his following written dismissal:

'Dismissal by Plaintiff

'The plaintiff, M. A. Isaacs, in the above entitled cause hereby dismisses his complaint and files this writing to that effect with the Clerk in vacation and prays the Court in term to enter judgment of dismissal.'

[98 Ind.App. 116] "The plaintiff further alleges that at the time of the filing of said written dismissal, and afterwards, this plaintiff tendered and offered to the Clerk of said Court the amount of $ , in lawful currency of the United States, the costs on dismissal of said cause, which, at the suggestion of said Stevenson, the Clerk refused to accept.

"The plaintiff further alleges that thereafter, to wit, on the 25th or 26th of July, 1930, the exact date of which is unknown to this plaintiff, and after the filing of said written dismissal by this plaintiff, the Court made the following order:

'July 5th, 1930.

'Argument of counsel heard. Finding and judgment for defendant announced. Plaintiff's [185 N.E. 156] attorneys request that the record of the proceedings and judgment be made on the first day of September term of Court for the reason that the court reporter is away and for the purpose of giving time and opportunity to read reporter's notes and make motion for new trial and attorneys for defendant agree that the Record may be made of 1st day of September Term.'

"The plaintiff further alleges that said order was not made on the 5th day of July, the date it purports to have been made on; that the same was made in vacation, and in violation of said agreement of July 14th, to the effect that the record in said cause shall be made at the September term of Court.

"The plaintiff further alleges that thereafter, to wit, on the 29th day of August, the plaintiff herein filed with this Court the following motion for a judgment of dismissal:

'Motion to Enter Judgment of Dismissal in Above Cause.

'Comes now M. A. Isaacs, the plaintiff in the above entitled and numbered cause, and respectfully shows to this Honorable Court that on the 22nd day of July, 1930, in vacation, the plaintiff herein filed with the Clerk of said Court a written dismissal of said cause pursuant to Section 355, Burns Rev....

To continue reading

Request your trial
1 cases
  • Isaacs v. Fletcher American Nat. Bank, 14359.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 29, 1933
    ...98 Ind.App. 111185 N.E. 154ISAACSv.FLETCHER AMERICAN NAT. BANK.No. 14359.Appellate Court of Indiana, in Banc.March 29, Appeal from Hendricks Circuit Court; Chas. V. Sears, Judge. Action by Moe A. Isaacs, trustee, against the Fletcher American National Bank. From a judgment for defendant, pl......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT