Kist v. Coughlin, No. 16787.

Docket NºNo. 16787.
Citation50 N.E.2d 939
Case DateOctober 12, 1943
CourtCourt of Appeals of Indiana

50 N.E.2d 939

KIST et al.
v.
COUGHLIN et al.

No. 16787.

Appellate Court of Indiana, in Banc.

October 12, 1943.


Appeal from Randolph Circuit Court, Claude C. Ball, Special Judge.

Action by Jane B. Coughlin, as trustee for Morton S. Hawkins and another, against Alfred A. Kist, Clyde N. Chattin, and others, for determination of the existence of a partnership between Morton S. Hawkins and first-named defendant, dissolution of such partnership, and appointment of a receiver pendente lite. Judgment for plaintiffs, and defendants appeal.

Reversed in part with instructions, affirmed in part, and appeal dismissed as to appellant Chattin.

[50 N.E.2d 943]

David A. Myers, of Greensburg, Roscoe D. Wheat, of Portland, James Murphy, of Fort Wayne, Moran & Abromson, of Portland, and Chattin & Wise, of Union City, for appellants.

Richard L. Ewbank, of Indianapolis, George H. Koons, of Muncie, W. H. Eichhorn, of Bluffton, and Robert L. Smith and Frank B. Jaqua, both of Portland, for appellees.


CRUMPACKER, Presiding Judge.

The action out of which this appeal grows was filed in the Jay Circuit Court and from there venued to Randolph County, where its trial and final disposition occupied the attention of the circuit court of that county at various intervals for a period of several years. It was brought in the first instance by the appellee Jane B. Coughlin, as trustee, for the appellees Morton S. Hawkins and Genevra I. Hawkins, against the appellants Alfred A. Kist, Robert M. Kist, Merle Kist, Sun Publishing Company, a corporation, Portland Republican Company, a corporation, and the appellees Morton S. Hawkins and Genevra I. Hawkins. Its purpose was to procure judicial determination of the existence of a partnership between the appellee Morton S. Hawkins and the appellant Alfred A. Kist in the ownership, management and control of certain newspapers published in Portland, Indiana, the dissolution of such partnership and the appointment of a receiver pendente lite. Since the commencement of the action the appellant Merle Kist has intermarried with one Burdg, but for convenience of indentification and reference the name Kist will be retained and used herein.

[1] Shortly after this appeal was submitted, the appellees sought its dismissal because of alleged lack of jurisdiction in this court. This motion was overruled without comment, and the appellees now ask us for a written opinion in support of such ruling. We know of no rule or practice that sanctions a nunc pro tunc opinion on a matter long since decided when none was required in the first instance and to express one now would unnecessarily extend our present remarks to no useful purpose or practical reason.

Demurrers to the original complaint were sustained and an “Amended Complaint” and “Second Paragraph of Complaint” were thereupon filed by the appellee Coughlin, Trustee. In theory and purpose these paragraphs of complaint are substantially the same and allege the existence of a partnership between the appellant Alfred A. Kist and the appellee Morton S. Hawkins and that, in acquiring his interest therein, the said Hawkins acted for and used the money of his mother, Genevra I. Hawkins. It is further alleged that the majority of the capital stock of the Portland Republican Company and the Sun Publishing Company is the property of said partnership and that, in his management of the affairs thereof, the appellant Alfred A. Kist has caused and permitted the property of said corporations to become co-mingled with that of the partnership. That the partnership has acquired a large amount of property now held by the said Alfred A. Kist, Merle Kist, his wife, and Robert M. Kist, his son, all of whom refuse to account for the same. That the said Alfred A. Kist has received for his services, as the managing partner, large sums of money over and above the sum agreed upon and that such excess income is partnership property for which the said Alfred A. Kist refuses to account. It is further alleged that said partnership had

[50 N.E.2d 944]

its inception in an oral contract between the said Alfred A. Kist and the said Morton S. Hawkins in 1918 which was supplemented on November 18, 1921, by an agreement in writing and that on January 9, 1933, all interest of Morton S. Hawkins and Genevra I. Hawkins therein was assigned to Jane B. Coughlin, as Trustee, for the use and benefit of said assignors. A receiver is asked for all partnership property pending an accounting and liquidation.

To each of these paragraphs of complaint the appellants Kist, Kist, Kist, Portland Republican Company and Sun Publishing Company addressed a joint and several demurrer for want of facts which was sustained as to the two corporate appellants and overruled as to the others. The parties to this appeal are in dispute as to what occurred after this ruling and in connection therewith, but reference to the record indicates that the appellee Coughlin, Trustee, was not ruled to plead further as against the appellants Sun Publishing Company and Portland Republican Company, nor did she at any time amend either paragraph of her complaint to state a cause of action against them or either of them. Judgment that the plaintiff take nothing by reason of her complaint was eventually entered on the ruling sustaining the demurrer. The appellants Kist, Kist and Kist filed answers in bar but there was no issue of fact joined on either paragraph of the complaint by the appellants Sun Publishing Company or Portland Republican Company. The appellees Morton S. Hawkins and Genevra I. Hawkins filed answers in the nature of confessions of judgment and the cause was thereupon submitted to the court for trial upon an agreement that the existence or nonexistence of the alleged partnership, the propriety of its dissolution and the appointment of a receiver pendente lite should first be determined by the court and if said issues were decided favorably to the appellee Coughlin, Trustee, the cause should be continued and later heard on the question of an accounting. Upon request the court found the facts specially, stated conclusions of law thereon and entered judgment establishing the alleged partnership, recognizing the assignment of the Hawkins' interest therein to the appellee Coughlin, Trustee, decreeing the dissolution of said partnership, appointing a receiver for partnership assets pendente lite and continuing the cause for further hearing on the accounting issue. From this judgment the appellants Kist, Kist and Kist appealed to the Supreme Court, where it was held that the judgment appealed from was an interlocutory order merely and that the only questions considered were “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.” These questions were all resolved in the affirmative and the interlocutory order affirmed. Kist v. Coughlin, Trustee, 1936, 210 Ind. 622, 1 N.E.2d 602, 604, 4 N.E.2d 533.

After the disposition of the above appeal, trial was resumed and many matters ancillary to and in aid of the receivership were heard upon issues joined on various pleadings and at its conclusion the court again found the facts specially from the entire evidence in the case and stated its conclusions of law thereon. All appellants then filed a motion for a venire de novo which was overruled, and they thereupon moved the court to correct its special finding of facts to conform to an alleged decision orally announced from the bench. This motion was also overruled. The court restated its conclusions of law Nos. 5 and 13, and all appellants filed a joint and several motion for a new trial which was overruled as to each. Judgment against all appellants was then entered by the court and this appeal perfected in due course.

The assignment of errors brings in question the court's rulings on the demurrers to the complaint, the motion for a venire de novo, the motion to correct the special finding of facts and conclusions of law, the motion to modify the judgment, the motion for a new trial and various other rulings whereby certain of the appellants were brought into the litigation as new and additional parties defendant upon petition of the receiver.

[2][3] At the outset we are met with the contention that the appellants' brief is not prepared in conformity with Rule 2--17(f) of the Rules of the Supreme Court, 1940 Revision, which provides that “The briefs shall contain under the heading 'Propositions and Authorities,' a copy of each assigned error relied on * * *,” and that therefore no question whatever is presented to this court for review. We recognize that the Rules of the Supreme Court have the force of adjective law and are as binding on the courts as upon the

[50 N.E.2d 945]

litigants, yet when the literal interpretation of a rule and its inflexible and unyielding application will prevent the determination of a controversy on its merits, it has always been, and should be we think, the policy of courts of appeal to relax, without completely abrogating, the rule when it appears that a good faith effort to comply with its provisions and purpose has been made and a substantial compliance therewith has been accomplished. Hillyer, Adm'r. v. Boyd, 1941, 109 Ind. App. 18, 32 N.E.2d 93;Vincennes Packing Corp. v. Trosper, 1940, 108 Ind.App. 7, 23 N.E.2d 624. The appellees specifically complain that in each of its “Propositions” the appellants' brief fails to set out a “copy of the error relied on.” However, in connection with each “Proposition” the appellants have stated the substance of the appropriate assignment of error and under the heading “Points and Authorities” have given us reasons for their position and have cited decisions claimed to be applicable and relative to such error. This we believe is a substantial compliance with the rule in question and we have had no difficulty in apprising ourselves of the appellants'...

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3 practice notes
  • Kist v. Coughlin, No. 27986.
    • United States
    • Indiana Supreme Court of Indiana
    • October 20, 1944
    ...Ann.St. § 4-215. Reversed in part with instructions, affirmed in part, and appeal dismissed in part. Superseding opinion, Ind.App., 50 N.E.2d 939. [57 N.E.2d 201]Appeal from Randolph Circuit Court; Claude C. Ball, Special judge.David A. Myers, of Greensburg, Roscoe D. Wheat and Albert A. Ab......
  • Kitch v. Moslander, No. 17078.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 19, 1943
    ...of compensation may be inferred from the conduct of the parties where equity and justice and fair dealing require compensation.” [50 N.E.2d 939] Plaintiff's instruction numbered 11 as given by the trial court was as follows: “If you find from a preponderance of the evidence in this case tha......
  • In re VID, Inc., Bankr. No. 2850.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • October 30, 1951
    ...this statute has been repeatedly recognized as unconstitutional by the courts of Indiana. Kist et al. v. Coughlin et al., Ind.App., 1943, 50 N.E.2d 939, transferred 1944, 222 Ind. 639, 57 N.E.2d 199; Johnston v. State et al., 1937, 212 Ind. 375, 8 N.E.2d 590; Robey v. Smith et al., 1892, 13......
3 cases
  • Kist v. Coughlin, No. 27986.
    • United States
    • Indiana Supreme Court of Indiana
    • October 20, 1944
    ...Ann.St. § 4-215. Reversed in part with instructions, affirmed in part, and appeal dismissed in part. Superseding opinion, Ind.App., 50 N.E.2d 939. [57 N.E.2d 201]Appeal from Randolph Circuit Court; Claude C. Ball, Special judge.David A. Myers, of Greensburg, Roscoe D. Wheat and Albert A. Ab......
  • Kitch v. Moslander, No. 17078.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 19, 1943
    ...of compensation may be inferred from the conduct of the parties where equity and justice and fair dealing require compensation.” [50 N.E.2d 939] Plaintiff's instruction numbered 11 as given by the trial court was as follows: “If you find from a preponderance of the evidence in this case tha......
  • In re VID, Inc., Bankr. No. 2850.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • October 30, 1951
    ...this statute has been repeatedly recognized as unconstitutional by the courts of Indiana. Kist et al. v. Coughlin et al., Ind.App., 1943, 50 N.E.2d 939, transferred 1944, 222 Ind. 639, 57 N.E.2d 199; Johnston v. State et al., 1937, 212 Ind. 375, 8 N.E.2d 590; Robey v. Smith et al., 1892, 13......

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