Kimmel v. Captain

• Decision Date: 05 January 1940
• Docket Number: 16212.
• Citation: 24 N.E.2d 435,107 Ind.App. 621
• Parties: KIMMEL v. CAPTAIN et al.
• Court: Indiana Appellate Court

24 N.E.2d 435

107 Ind.App. 621

KIMMEL v. CAPTAIN et al.

No. 16212.

Appellate Court of Indiana, in Banc.

January 5, 1940

Sturgis Stine & Sturgis and Eichhorn, Gordon & Edris, all of Bluffton, for appellant.

Simmons & Simmons and George Mock, all of Bluffton, for appellees.

STEVENSON Judge.

The appellant brought this action in the court below against the appellees as stockholders and partners engaged in the business of conducting a private bank under the name of the "Bank of Poneto."

The appellant's amended complaint alleged that on the 25th day of July, 1923, and for many years prior thereto, the appellant and the appellees herein were partners engaged in the business of conducting a private bank. That said bank operated under the name and style of "Bank of Poneto", and that the capital stock of the bank was divided into 150 shares of the par value of $100 each. The appellant alleged that on the 25th day of July, 1923, he filed a suit against the Bank of Poneto to recover $25,000 by him deposited with said bank. The appellant further alleged that on the 8th day of October, 1923, the Bank of Poneto was closed and the appellee William A. Kunkel, Jr., was subsequently appointed receiver by the Wells Circuit Court who took charge of the assets of the bank and proceeded to liquidate the same. The appellant further avers that he recovered a judgment against the Bank of Poneto and William A. Kunkel, Jr., as receiver for the sum of $25,000 and interest thereon from the 10th day of February, 1926. That on the 6th day of November, 1930, the said William A. Kunkel Jr., as receiver for said bank filed his final report as such receiver in the Wells Circuit Court, which final report disclosed that all of the assets of said partnership had been disposed of, all claims paid and satisfied except the judgment of the appellant herein. That said final report of said receiver was approved and receiver discharged. The appellant by this action now demands an accounting against the appellees as partners and seeks a contribution from each of the appellees of their proportionate share of the indebtedness due him.

To this amended complaint the appellee Charles H. Captain filed his separate demurrer for the reason, first, that there is a defect of parties defendant, and second, that the plaintiff's amended complaint does not state facts sufficient to constitute a cause of action. A similar demurrer was also filed by the appellees William A. Kunkel Jr., and Kenneth M. Kunkel, as executor of the last will and testament of William A. Kunkel, deceased. The appellee William Hardwidge and the other above named appellees each filed similar and separate demurrers. These demurrers were sustained by the court and the appellant excepted to each ruling of the court and refused to plead over. Judgment was accordingly entered by the court on the pleadings that the appellant take nothing by his action and that the appellees recover their costs.

The errors relied upon for reversal in this court are the alleged errors in sustaining the demurrers of each of the above named appellees.

The separate and several demurrers of the above named appellees all raise the same question. The first question presented is whether or not there is a defect of parties in the amended complaint. The appellees contend that since all the partners engaged in the business of operating a private bank are debtors of all the creditors of a business in which he is a partner, that the appellant himself should have been made a party defendant. This contention evidently disregards the theory of the appellant's cause of action. The appellant is suing in this action for a contribution from his copartners. In such an action it is not necessary to name himself as a party defendant. Dale et al. v. Thomas et al., 1879, 67 Ind. 570; Anderson v. Ackerman, 1883, 88 Ind. 481.

The appellees further contend that having elected to sue the bank, and having obtained a judgment against the bank to which the appellees were not parties, that the appellant is now barred from proceeding against the appellees as partners to recover on the same obligation. That the two remedies were inconsistent and, having elected to pursue the one, he is now precluded from asserting the other. We cannot agree with these contentions. The appellant was clearly within his rights when he filed a suit against the Bank of Poneto to recover for money deposited with said bank. The judgment rendered in his favor in that action was binding upon the appellees and all other partners interested in said private bank. The statute under which this bank was organized and operated provided that a private bank could sue and be sued under the name under which such bank was authorized to transact its business. And this statute further provided that, "Any judgment obtained against such bank shall be valid and binding against all the persons interested therein." Sec. 18-2711, Burns' Ind. Statutes, 1933 Revision. This statute has been interpreted by our Supreme Court to the effect that a judgment against such bank is in reality a judgment against the individual owners of the private bank. Hall et al. v. Essner et al., 1934, 208 Ind. 99, 193 N.E. 86. The Supreme Court in the case of Borgman, Treasurer, et al. v. State ex rel. Rodenbeck...