Kist v. Coughlin
| Decision Date | 01 May 1936 |
| Docket Number | 26463. |
| Citation | 1 N.E.2d 602,210 Ind. 622 |
| Parties | KIST et al. v. COUGHLIN et al. |
| Court | Indiana Supreme Court |
Suit by Jane B. Coughlin, trustee, and others against Alfred A. Kist and others. Judgment for plaintiffs, and defendants appeal.
Affirmed.
Appeal from Randolph Circuit Court; Alonzo L Bales, Judge.
James R. Fleming, of Fort Wayne, M. V. Skinner and R. D. Wheat both of Portland, Frederick S. Caldwell, of Winchester, Russell Wise, of Union City, James J. Moran, of Portland, and Owen S. Boling, of Indianapolis, for appellants.
Geo. Koons, of Muncie, Robt. L. Smith, of Portland, Wm. H. Eichhorn, of Bluffton, John W. Macy, of Winchester, and R. L. Ewbank, of Indianapolis, for appellees.
Appellee Jane B. Coughlin, as trustee, began this action by filing a complaint, in the caption of which it appears that she, together with the Portland Republican Company, and the Sun Publishing Company are plaintiffs, but in the body of which it clearly appears that those companies and all of the other parties to this appeal were defendants, and that she alone, as trustee, was plaintiff. Thereafter, upon leave of court, she filed an amended complaint with the same parties plaintiff and defendant, in which she alone, as trustee, appears in the caption as plaintiff. In the original complaint, a receiver was asked for the property of a partnership alleged to have existed between appellant Alfred A. Kist and appellee Morton S. Hawkins, and it is alleged that, in acquiring his interest in the partnership, Morton S. Hawkins acted for, and with the funds of, appellee Genevra I. Hawkins. A receiver was also asked for the Portland Republican Company and the Sun Publishing Company, both corporations, on the theory that the entire stock of those corporations was the property of the partnership, and that the property of the partnership had been comingled with the property of the corporations. In the amended complaint, a receiver is asked for the partnership property, but not for the property of the corporations. The basic facts relied upon by plaintiff were the same in both paragraphs. The relief sought was slightly different. The original complaint was taken out of the record by the filing of the amended complaint.
Upon the petition of the plaintiff, the court heard evidence, found the facts specially, filed conclusions of law, and entered an order or judgment determining that a partnership existed between Morton S. Hawkins and Alfred A. Kist, that the interest of Morton S. Hawkins and Genevra I. Hawkins in the partnership property has been assigned to the plaintiff, ordering a dissolution of the partnership, and an accounting, and appointing a receiver for the partnership property. The judgment recites that by agreement of the parties entered into before the hearing, it was agreed that if a partnership were found to exist, and a receiver was appointed for the partnership property, a determination of the issue raised upon an accounting should be deferred for future trial. After the court's determination of these questions was announced, it was agreed between the parties that the entry of judgment might be deferred a sufficient length of time to permit appellants to procure a transcript of the record and file the same within the time provided by statute for taking appeals from interlocutory orders. This was done, and the judgment was entered as of the 14th day of June, 1934, and the transcript and the assignment of errors were filed in this court on June 22, 1934.
Errors are assigned upon the action of the court in appointing a receiver, and also on the rulings of the court upon appellants' motion for a new trial, on the refusal of the court to grant a change of venue, upon the rulings on demurrers, upon the action of the court granting an injunction, and upon the conclusions of law.
Appellants insist that this is an appeal from a final judgment, and not from an interlocutory order. It has been held by this court in numerous cases that a final judgment is one disposing of all of the issues and the whole controversy as to all of the parties, and that a judgment which does not show final disposition of the issues is not final. The judgment here does not purport to dispose of all of the issues. Appellants say that there is no basis for the statement in the judgment that, by agreement of the parties, the determination of certain issues was to be deferred for future trial. But it is apparent, from the face of the judgment, that the court did not attempt to finally determine all of the issues. If the judgment is final, jurisdiction of the appeal is in the Appellate Court, and not in this court, and if there is an intervening interlocutory order, jurisdiction to review that order for error on an appeal from a final judgment is in the court having jurisdiction of the appeal from the final judgment. Hay et al. v. McDaneld (1901) 156 Ind. 390, 59 N.E. 1064. But appellants procured a delay in entering the judgment so that they might appeal to this court, which has jurisdiction of appeals from interlocutory orders, within the time for perfecting such appeals, and made no attempt to appeal to the Appellate Court, which would have jurisdiction of a final judgment in the case. In the transcript of the record filed by appellants they have described the judgment in the marginal notes as ‘ interlocutory decree.’ Appellants have made no effort to have the appeal transferred to the Appellate Court, where jurisdiction from a final judgment in the case would lie. It is clear that the court below considered the order or judgment as interlocutory. It must be concluded that the appeal is from an interlocutory order.
Appellees timely filed a motion to dismiss the appeal for misjoinder of parties. The assignment of errors names appellees in the following order:
‘ Genevra I. Hawkins, Appellees.’
It is appellees' contention that, since there is no comma after the name ‘ June B. Coughlin, Trustee,’ she must be considered as named as the trustee for Portland Republican Company and Sun Publishing Company, whereas in the judgment she is found to be the trustee for Morton S. Hawkins and Genevra I. Hawkins. But the omission of a comma cannot have such a serious effect. Appellees could not have been misled. The motion to dismiss is overruled.
On an appeal from an interlocutory order appointing a receiver, the only questions which will be considered are whether the court had jurisdiction, whether the action was one in which a receiver might be appointed, and whether the facts most favorable to appellees justify the appointment. Continental Clay & Mining Co. v. Bryson (1907) 168 Ind. 485, 81 N.E. 210. The sufficiency of the complaint to withstand a demurrer will not be determined, but it will be looked to in considering the necessity for the appointment. Levin et al. v. Florsheim & Co. et al. (1903) 161 Ind. 457, 68 N.E. 1025; Guynn et al. v Newman (1910) 174 Ind. 161, 90 N.E. 759. In such cases a motion for a new trial is not contemplated. Shoemaker v. Smith (1881) 74 Ind. 71; Portage Brick Co. v. North Indiana Brick Co. (1920) 189 Ind. 639, 128 N.E. 847. Special findings of fact and conclusions of law are not contemplated by the practice. All questions which may be raised are sufficiently saved by an exception to the action of the court in appointing a receiver. In view of these well-settled rules, no question is presented by the assignment of...
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