Lighthill v. Garvin

• Decision Date: 17 June 1940
• Docket Number: 16344.
• Parties: LIGHTHILL et al. v. GARVIN et al.
• Court: Indiana Appellate Court

27 N.E.2d 911

108 Ind.App. 187

LIGHTHILL et al. v. GARVIN et al.

No. 16344.

Appellate Court of Indiana, in Banc.

June 17, 1940

E Miles Norton, of Crown Point, Geo. P. Rose and Charles E Daugherty, both of Gary, and Jesse Gammon, of Indianapolis for appellants.

Walter Myers, of Indianapolis, Geo. E. Hershman, of Crown Point Crumpacker & Friedrich, of Hammond, M. W. Malczewski, of Gary, and Jay E. Darlington, of Hammond, for appellees.

DE VOSS, Judge.

The Meyer-Kiser Bank of Indianapolis, Indiana, a corporation filed its complaint in the Lake Circuit Court against the Joseph Broadway Realty Company, a corporation, and others alleging indebtedness due and owing to it from defendants in the sum of $15,329.59, and further alleging the insolvency of said Joseph Broadway Realty Company and praying for the appointment of a receiver for said Joseph Broadway Realty Company. Thereafter on September 8, 1931, a hearing was had on the petition for appointment of a receiver and James J. Kelley was appointed and qualified as such receiver and has since said time acted as receiver of said Joseph Broadway Realty Company. Thereafter, Thomas E. Garvin, as receiver of the Meyer-Kiser Bank, was substituted as plaintiff in said cause. Thereafter, the demands sued upon were submitted to the court for trial and there was a finding and judgment for said Thomas E. Garvin, receiver of the Meyer-Kiser Bank, against James J. Kelley, receiver of the Joseph Broadway Realty Company, in the sum of $18,338.60. On June 14, 1938, Charles Baran, Incorporated, filed his petition to intervene and the issues formed thereon were submitted to the court and the court found that petitioner Charles Baran, Incorporated, was entitled to an equitable lien upon the real estate of said Joseph Broadway Realty Company in the sum of $45,015.60, and further found for said petitioner on his tax claim in the sum of $800. The court also made an order fixing the time and terms of the receiver's sale of all of the property of the said Joseph Broadway Realty Company.

Thereafter appellant Sydney Lighthill, on behalf of himself and others similarly situated, filed his verified petition to intervene, to which petition were attached divers affidavits.

Thereafter on August 2, 1938, appellee James J. Kelley, receiver of the Joseph Broadway Realty Company, filed his motion for a new trial on the intervening petition of Charles Baran, Incorporated.

Thereafter on August 3, 1938, appellants Mae C. Berling, Mary Fletemeyer and Louise Fletemeyer filed their separate verified petitions to intervene, which petitions were each accompanied by divers affidavits, and on said day last above mentioned appellees Thomas E. Garvin, receiver of the Meyer-Kiser Bank of Indianapolis, James J. Kelley, receiver of the Joseph Broadway Realty Company, filed their separate verified motions to strike out and reject the petitions to intervene of Sydney Lighthill, Mae C. Berling, Mary Fletemeyer, and Louise Fletemeyer; and Charles Baran and Charles Baran, Incorporated, filed their joint verified motion to strike out and reject the petitions to intervene of Sydney Lighthill, Mae C. Berling, Mary Fletemeyer and Louise Fletemeyer, and on said August 3, 1938, said motions to strike out were partially submitted to the court and were continued for a further hearing until August 15, 1938.

On August 15, 1938, oral arguments on the motions to strike out appellants' several petitions to intervene were heard and the further hearing on said motions was continued for the filing of documentary evidence.

On August 23, 1938, appellants Sydney Lighthill and Mae C. Berling tendered for filing their separate verified applications for a change of venue from the judge.

Various affidavits were filed by appellants in support of their petitions to intervene as were also filed affidavits by appellees in support of their motions to strike out the petitions to intervene and in response to said petitions to intervene. Various motions were made by appellants to strike out affidavits filed by appellees in support of motions to strike out petitions to intervene.

Motions to strike out affidavits of appellees filed in support of motion to strike out petitions to intervene were filed by appellants.

Appellants Sydney Lighthill, Mary Fletemeyer, Louise Fletemeyer and Mae C. Berling filed their joint petition and request for an opportunity to present oral argument upon the petitions filed and motions to strike the same from the files.

On the 13th day of September, 1938, the court made and entered the following entry and decree, towit: "Come again the parties hereto and the Court now resumes the consideration of the motions of the judgment plaintiff, Thomas E. Garvin, Receiver of the Meyer-Kiser Bank of Indianapolis, Indiana, an Indiana Corporation, James J. Kelley as Receiver of the Joseph Broadway Realty Company and Charles Baran and Charles Baran, Incorporated, to strike out the petitions of Sidney Lighthill, Mae C. Berling, Mary Fletemeyer and Louise Fletemeyer to intervene, the issue on which was submitted and begun on August 3rd, 1938, and having examined all affidavits and counter affidavits supporting and resisting said motions to strike, and having previously heard arguments on said motions, and being duly advised in the premises, now sustains each of said motions to strike out each of said petitions to intervene; the Court now finds that the motions of said Sidney Lighthill, Mae C. Berling, Mary Fletemeyer and Louise Fletemeyer, requesting the court to consider affidavits and hear arguments are moot, requiring no further ruling, for the reason that the same have been substantially complied with; the court further finds that the motions of said Lighthill, Fletemeyer, Fletemeyer and Berling to strike out affidavits are moot, requiring no further ruling for the reason that the issue presented by said motions was determined by order of court of August 15th, 1938; and the Court further finds the tender and offer of said Lighthill and Berling, to file affidavits for change of venue relative to anticipated trial on their petitions to intervene to be moot, requiring no further ruling by reason of the sustaining of the motions to strike said petitions and further because hearing on said issues was in progress at the time said tender and offer was made. It is now by the court ordered that a reappraisement of property be made by a new board of appraisers to be appointed."

Appellants separately and severally excepted to each ruling of the court as to each separate motion ruled upon by the court in its entry made that day, and prosecuted this appeal therefrom.

Appellants in their brief under the heading "errors relied upon for reversal of the judgment" specify thirty errors which for the sake of brevity are condensed as follows: (1) The court erred in sustaining the separate motions of James J. Kelley, receiver of the Joseph Broadway Realty Company, Thomas E. Garvin, receiver of the Meyer-Kiser Bank of Indianapolis, Indiana, Charles Baran, and Charles Baran, Incorporated, to strike out the petitions to intervene of Sydney Lighthill, Mary E. Fletemeyer, Louise Fletemeyer and Mae C. Berling. (2) The court erred in failing and refusing to rule on the separate affidavits and motions for a change of venue from the judge as filed by Sydney Lighthill and Mae C. Berling. (3) The court erred in failing and refusing to rule on the separate motions of Sydney Lighthill, Mae C. Berling, Mary E. Fletemeyer, and Louise Fletemeyer for a day in court. (4) The court erred in refusing to strike out and strike from the files the affidavits and each of them tendered and filed in support of the motions of James J. Kelley, receiver of the Joseph Broadway Realty Company, Thomas E. Garvin, receiver of the Meyer-Kiser Bank of Indianapolis, Charles Baran, and Charles Baran, Incorporated, to strike out the intervening petitions of Sydney Lighthill, Mae C. Berling, Mary E. Fletemeyer, and Louise Fletemeyer.

Appellants predicate error on the sustaining of the motions of appellees to strike out the intervening petitions of appellants. The several motions are not set out in appellants' brief however, the substance thereof is set out sufficiently to inform the court relative thereto. The petitions to intervene by the several appellants to which the motions to strike out were directed are likewise not set out in the brief, but from the statement as to the substance we are informed under the heading "statement of the record" that petitioners are...