London & Lancashire Indemnity Co. of America v. Community Sav. & Loan Ass'n

• Decision Date: 25 November 1936
• Docket Number: 15365.
• Citation: London & Lancashire Indemnity Co. of America v. Community Sav. & Loan Ass'n, 4 N.E.2d 688, 102 Ind.App. 665 (Ind. App. 1936)
• Parties: LONDON & LANCASHIRE INDEMNITY CO. OF AMERICA et al. v. COMMUNITY SAVINGS & LOAN ASS'N.
• Court: Indiana Appellate Court

4 N.E.2d 688

102 Ind.App. 665

LONDON & LANCASHIRE INDEMNITY CO. OF AMERICA et al. v. COMMUNITY SAVINGS & LOAN ASS'N.

No. 15365.

Appellate Court of Indiana, in Banc.

November 25, 1936

Appeal from Gibson Circuit Court; A. Dale Eby, Judge.

Suit by Rollin Maxam against the Community Savings & Loan Association, wherein the defendant filed a counterclaim against Rollin Maxam and the London & Lancashire Indemnity Company of America. From an adverse judgment, the London & Lancashire Indemnity Company of America and Rollin Maxam appeal.

Affirmed.

Wm. L Mitchell, of Evansville, and Embree & Baltzell, of Princeton for appellants.

McDonald & McDonald, of Princeton, for appellee.

WOOD Chief Judge.

The appellee has filed a verified petition to dismiss this appeal. The pertinent facts set out in the motion may be briefly summarized as follows: June 2, 1934, the trial court signed and filed its special finding of facts and stated its conclusions of law thereon in favor of the appellee, on which judgment was accordingly rendered. On the same day each appellant filed a separate motion for a new trial, which motions were overruled. On the same day the appellant Indemnity Company alone prayed an appeal to this court which was granted. The amount of the appeal bond was fixed, surety named and approved, said bond to be filed within 60 days thereafter. This bond with the approved surety was filed on July 27, 1934, and the transcript was filed in this court on September 20, 1934, within 60 days of the filing of the appeal bond as required by section 2-3204, Burns' 1933. The assignment of errors filed in this court was entitled London & Lancashire Indemnity Company, Rollin Maxam, Appellants, v. Community Savings & Loan Association, Appellee. No term time appeal was jointly prayed by the appellants. No joint term time appeal bond was filed by the appellants. No separate term time appeal was prayed by Rollin Maxam, and no separate appeal bond was filed by him.

On this state of facts, appellee insists that, if this is a term time appeal by the appellant Indemnity Company, Rollin Maxam is not properly named as a party appellant under rule 4 of this court. Further, that Rollin Maxam was neither a proper or necessary party appellant to a term time appeal taken by his co-appellant, but could have been properly joined as a party appellant in a vacation appeal by both the appellants, that therefore this appeal must be presumed to be a vacation appeal by both appellants, and, having been on the docket more than 90 days, and there having been no appearance for the appellee, and no steps having been taken to bring the appellee into this court, there has been a failure to perfect this appeal by the appellant Indemnity Company as a term time appeal and by both appellants as a vacation appeal, and that pursuant to rule 36 of this court this appeal should be dismissed.

This motion is not well taken. The record discloses that the appellant Indemnity Company perfected a term time appeal. Under such circumstance, it was not necessary for the appellant Indemnity Company to make or name Rollin Maxam, who was its coparty to the judgment, a party to the appeal either as appellant or appellee. Section 2-3212, Burns' 1933, sections 476, 477, Baldwin's Ind.St.1934, reads as follows: " Whenever a part of any number of coparties against whom a judgment has been taken shall appeal from such judgment to the Supreme or Appellate Court under the provisions of section 638 of the Revised Statutes of 1881 (§ 2-3204), providing for term-time appeals, it shall not be necessary to make such coparties not appealing parties to the appeal, and it shall not be necessary to name them as appellants or appellees in the assignment of errors, but they shall be bound by the judgment on appeal to the same extent as if they had been made parties." See, also, section 2-3214, Burns' 1933, section 475, Baldwin's Ind.St.1934, and Deutsch v. Schmidt (1928) 87 Ind.App. 414, 161 N.E. 855.The motion to dismiss is overruled.

The appellant Rollin Maxam brought suit against the appellee to recover money alleged to be due him from appellee for services rendered in the capacity of secretary, for office space, equipment, clerical services, heat, light, and telephone services furnished, and for money paid and advanced for it. This complaint was answered by a general denial. The appellant Indemnity Company was not a party to this complaint and filed no pleadings in answer to the issues tendered thereby.

The appellee filed an amended counterclaim against the appellant Rollin Maxam, in which it sought to recover from him certain funds of appellee which came into the possession of Maxam, as appellee's secretary, which funds it is alleged he wrongfully and unlawfully converted to his own use and failed and refused to account for and turn over to appellee. The appellant Maxam, at the time of entering upon his duties as such secretary, executed a bond in the sum of $5,000 for the honest and faithful discharge of his duties as such secretary, with appellant London & Lancashire Indemnity Company as surety thereon. This counterclaim alleged a breach of said bond and said appellant Indemnity Company was made a defendant thereto, to answer for the alleged default of Maxam. The bond was renewed and continued from year to year and was in full force and effect at the time of the alleged defalcations of Maxam. A copy of the original bond and all certificates of continuation were attached to the pleading as exhibits. To this counterclaim the appellant Indemnity Company addressed a motion to strike out the allegations thereof directed against it as surety upon said bond on the theory that it was not a party defendant or otherwise to the original cause of action and said counterclaim was not germane thereto. This motion was overruled. The appellant Indemnity Company then filed a demurrer to said counterclaim for insufficiency of facts, upon the theory expressed in various ways that the cause of action therein set out was a new, independent action in no way connected with or germane to the cause of action set out in the original complaint of Maxam against appellee. This demurrer was overruled. The appellant Indemnity Company then filed a motion to dismiss said counterclaim as to it, for substantially the same reasons alleged in the motion to strike out and in the demurrer. This motion was overruled. The appellant Indemnity Company then filed an answer in four paragraphs to said counterclaim. The first was a general denial, the second pleaded confession and avoidance through breach, by departure from or material alterations of the surety contract by the appellee, the third pleaded confession and avoidance by breach of the surety contract by the appellee through non-observance of its by-laws and the laws of Indiana, and the consequent variation and enlargement of the risk, the fourth pleaded estoppel to a portion of the defalcations set out in the counterclaim. The appellee filed a reply in general denial to the second, third, and fourth paragraphs of this answer. The appellant Rollin Maxam filed an answer in general denial to the counterclaim.

The appellant Indemnity Company then filed a second motion to dismiss said counterclaim as to it for substantially the same reasons embraced in its previous motion to dismiss. This motion was overruled.

The cause was submitted to the court for trial without a jury upon the issues above outlined. Upon request the court found the facts specially, stated its conclusions of law thereon, and rendered judgment in favor of appellee on its amended counterclaim against both appellants. The appellants filed separate motions for a new trial, both of which were overruled. From the judgment thus rendered the appellant Indemnity Company as heretofore stated prayed and perfected a term time appeal to this court.

The errors assigned for reversal by the appellant Indemnity Company are: (1) Overruling its motion to strike out parts of the amended counterclaim; (2) overruling its demurrer to the amended counterclaim; (3) overruling its motion to dismiss the amended counterclaim as to it; (4) overruling its motion to dismiss the amended counterclaim, which motion was filed immediately prior to the commencement of the trial of said cause; (5) error in the first conclusion of law; (6) error in the second conclusion of law; (7) overruling its motion for a new trial.

The first assignment of error presents no question for our consideration. Error cannot be predicated upon the action of the trial court in overruling a motion to strike out a part or all of a pleading. Woodhams v. Jennings (1905) 164 Ind. 555, 73 N.E. 1088; Rooker v. Fidelity Trust Co. (1921) 191 Ind. 141, 131 N.E. 769.

It is the contention of appellant Indemnity Company that, because the complaint of Maxam sought to recover from the appellee money alleged to be due and owing to him on account, the amended counterclaim filed by appellee against Maxam, secretary, and the appellant Indemnity Company, as surety on his bond, for the unlawful conversion by him of funds of appellee, is not germane to the original action, is an effort to litigate a collateral matter, and therefore did not state facts sufficient to constitute a counterclaim in the original action.

This contention is not sustained by our Code of Civil Procedure nor by the construction placed thereon and the application thereof made by the courts of last resort of this state. " A counter-claim is any matter arising out of or connected with the cause of action which might be the subject of an action in favor of the defendant, or which would tend to reduce the plaintiff's claim or demand for damages." Section 2-1018, Burns' 1933, section 122 Baldwin's Ind.St.1934. The facts are...