Kist v. Coughlin
| Decision Date | 20 October 1944 |
| Docket Number | 27986. |
| Citation | 57 N.E.2d 199,222 Ind. 639 |
| Parties | KIST et al. v. COUGHLIN et al. |
| Court | Indiana Supreme Court |
[Copyrighted Material Omitted]
Appeal from Randolph Circuit Court; Claude C. Ball Special judge.
David A. Myers, of Greensburg, Roscoe D. Wheat and Albert A Abromson, both of Portland, James Murphy, of Fort Wayne, and Chattin & Wise, of Union City, for appellants.
Wheeler Ashcraft, of Portland R. L. Ewbank, of Indianapolis, Geo. H. Koons, of Muncie, W. H. Eichhorn, of Bluffton, and Robert L. Smith and Frank B. Jaqua, both of Portland, for appellees.
The appellee, Jane B. Coughlin, trustee, filed a complaint in the Jay Circuit Court wherein she alleged that she was the assignee of Morton S. Hawkins and Genevra I. Hawkins. This complaint also alleged a partnership between Alfred A. Kist and Morton S. Hawkins which commenced in the fall of 1918 by virtue of an oral contract, and that this partnership would acquire and control the stock of the Portland Republican Company, which at that time owned and published a newspaper in Jay County, Indiana. The complaint further alleged that under the terms of the contract the partnership was to acquire control of other newspapers published in Jay County, and that Morton S. Hawkins furnished large sums of money to establish and maintain these enterprises. That the said Alfred A. Kist carried out this agreement and secured control of the newspapers, but never accounted for any of the earnings of the partnership or the corporations, and so managed the same that the whole matter became a family enterprise, which was operated for the sole and exclusive benefit of Alfred A. Kist, his wife, Merle Kist, and his son, Robert M. Kist. Further it alleged that contrary to the terms of the contract he had failed to keep books and records which would reflect the condition of the business at all times.
Although this suit was commenced in 1933, hearing was not completed until 1934. At that time, the court entered a judgment determining the existence of the partnership, and that Alfred A. Kist, Merle Kist, and Robert M. Kist were indebted to appellee, Jane B. Coughlin, trustee, in a large sum of money, the amount of which could not be ascertained without an accounting, and the court also enjoined the defendants from transferring or selling any of the property of the partnership.
In the prior appeal from this judgment, Kist v. Coughlin, Tr., 1936, 210 Ind. 622, 626, 1 N.E.2d 602, 603, 4 N.E.2d 533, this court in its opinion stated that the judgment of the Randolph Circuit Court recited 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.'
This court then determined that the appeal was from an interlocutory judgment, and that while the complaint was not considered as to its sufficiency to withstand a demurrer, it was examined to determine the necessity for the appointment of a receiver. It was further determined that in the absence of a restraining order the defendants in this action would not have the right to do the things from which they were enjoined by the judgment of the court, and that the complaint sufficiently alleged a partnership, and also that the defendants were in the possession of partnership property for which they were refusing to account. The court further stated that there is nothing unlawful in a partnership owning and controlling corporation stock, and that the sale by a partner of his interest in partnership property does not of itself terminate a partnership, but is merely a cause for the dissolution of the partnership. These pronouncements by this court are such that they must be considered as the law of this case.
While the present appeal was pending in the Appellate Court, the appellees filed a petition to dismiss because of alleged lack of jurisdiction. The motion to dismiss was overruled without comment and in the petition to transfer the appellees now ask this court to pass upon the question there raised.
One contention is that the Sun Publishing Company was a party to the action below from the time of the filing of the complaint and that the receiver was awarded and given control of said corporation and that neither he nor his attorney authorized the Sun Publishing Company to appeal. It is further contended that Genevra I. Hawkins, Joseph M. Aldridge and Solomon J. Highsmith died more than thirty days prior to the filing of the transcript and that no effort was made to bring in those who have a right to represent the various interests of these three named parties.
The interest in and to this proceeding of Genevra I. Hawkins had been assigned to the appellee, Jane B. Coughlin, trustee, prior to the commencement of the action, and Joseph M. Aldridge and Solomon J. Highsmith were not parties to the original action, were never made parties by Jane B. Coughlin, trustee, nor was any judgment rendered either for or against them, and Genevra I. Hawkins is exempted from any of the effects of the judgment rendered by the court, except that her execution of the assignment is recognized. While the appellees have cited numerous cases wherein dismissal was had because of the failure of the appellants to issue notice to some party who was necessary to the appeal, in this particular appeal the cases cited have no application.
Furthermore, the Sun Publishing Company and the Portland Republican Company filed demurrers to the complaint on which this cause was tried, and each demurrer was sustained, and no effort to plead over was made. Later a supplementary complaint against the Sun Publishing Company was filed and withdrawn. The court after the withdrawal of the supplementary complaint entered judgment for and on behalf of the Sun Publishing Company and the Portland Republican Company. This was a final judgment and removed them from the main action. Stuck v. Town of Beech Grove, 1929, 201 Ind. 66, 163 N.E. 483. Under such circumstances the motion to dismiss was correctly overruled.
The Sun Publishing Company is connected with this appeal by means of a summary proceeding commenced by the receiver, wherein he requested the enlargement of the scope of the receivership. This pleading claimed inability of the receiver to secure possession of assets claimed to belong to the partnership and suggested that the receivership be extended to include the property of the Sun Publishing Company. Thereupon an attorney employed by the receiver entered an appearance for the corporation and consented to the enlargement of the scope of the receivership. The court then entered judgment wherein the receiver of the partnership property was also appointed receiver for the property of the Sun Publishing Company. Intervening petitions and objections to extending the scope of the receivership were filed and the court set aside its former ruling.
If this proceeding was authorized it is only because it was one of a summary nature. Summary proceedings are ancillary to, but not a part of, the main action. Cook v. The Citizens National Bank, 1881, 73 Ind. 256, Clarke v. City of Evansville, 1921, 75 Ind.App. 500, 131 N.E. 82; 1 Clarke on Receivers (2d Ed.), pp. 795, 796, § 584. The Sun Publishing Company is not a party to this main action.
The appellees further claim that the evidence is not in the record because the certificate of the judge does not state that it contains all of the evidence given in the cause, and the appellants refer to the certificate of the reporter wherein the statement is made that it contains all of the evidence. In order to determine this question we must examine the bill of exceptions as a whole to ascertain whether or not it contains words which indicate clearly and unmistakably that the bill does contain all of the evidence.
There were a number of different reporters used during this trial and of course each reporter transcribed that portion of the evidence given in his or her presence. In the beginning of the bill it is plainly and distinctly stated as a part thereof that appellants have ordered a full, true and complete copy of the evidence given in the presence of the various reporters. That is followed by the statement of the court to the effect that such full, true and complete transcript of the evidence is as follows, which in turn is followed by a transcript of the evidence. This bill is concluded by a certificate of the special judge verifying each item in the bill of exceptions.
The unmistakable import of the words of the bill of exceptions indicates that the transcript contains all of the evidence. It is only necessary that either in the bill itself or in the certificate of the judge, that it be stated 'that it contains all of the evidence given in the cause' or words of equivalent import. McMurran v. Hannum, 1916, 185 Ind. 326, 113 N.E. 238, 239.
The appellees also criticise the brief of the appellants as not being in compliance with the rules of this court. They complain that all of the pleadings and the findings are not set out in full in the appellants' brief and that more than one assignment of error is handled under one proposition, but we feel that the appellants have endeavored to comply with the rules and have written into the brief sufficient so that this court understands the questions presented. The substance of the pleadings and findings is set out, and the propositions and points are applied to the various assignments of error. A brief is sufficient when its form shows that the brief-maker had in mind at all times the various rules and has so presented his questions that under the rules and...
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