McClelland v. Bristow
| Decision Date | 02 November 1893 |
| Docket Number | 856 |
| Citation | 35 N.E. 197,9 Ind.App. 543 |
| Parties | MCCLELLAND, ADMINISTRATOR, v. BRISTOW, ADMINISTRATOR |
| Court | Indiana Appellate Court |
Petition for a rehearing overruled April 6, 1894
From the Clinton Circuit Court.
Judgment reversed, with instructions to grant a new trial.
J. V Kent, R. W. Irwin, S. O. Bayless and C. G. Guenther, for appellant.
M Bristow and J. T. Hockman, for appellee.
The facts in this case are substantially as follows:
In March, 1877, the appellee was duly appointed as administrator of the estate of Williamson Farrar, deceased, by the Clinton Circuit Court, and having qualified, proceeded to settle said estate; that he received, as such administrator, the sum of $ 6,727.24.
In April, 1885, the appellee filed his petition asking to be allowed to settle said estate as insolvent. The appellant, together with the other creditors, resisted the granting of the petition, charging that the estate was solvent, but that the appellee had taken credit in his reports for a large sum on false and fraudulent vouchers.
Pending these proceedings, the court ordered the appellee to make and file a report showing the true amounts received by him, the date when, and from whom, received.
In compliance with this order, the appellee filed a report showing the receipts to be $ 6,727.24, and the disbursements $ 5,896.97, with insolvent claims amounting to $ 658.95, leaving a balance in his hands, including insolvent claims, of $ 1,830.27.
To this report the creditors, including appellant, filed exceptions, and also filed a petition asking the removal of appellee from said trust.
Upon issues formed, there was a trial and finding by the court that there was in the hands of the appellee, belonging to said estate, the sum of $ 1,723.40, which he was ordered to apply within thirty days, in the following manner, viz: First, to the payment of costs and expenses of administration, and, second, to the payment of claims filed and allowed against said estate.
From this judgment the appellee appealed to the Supreme Court, where the judgment of the lower court was in all things affirmed. Bristow, Admr., v. McClelland, Admr., 122 Ind. 64, 22 N.E. 299.
On the 26th day of March, 1890, after the opinion of the Supreme Court had been rendered, the appellee filed his report as such administrator, in which he charged himself with the $ 1,723.40, which the court found was in his hands, and also interest thereon from the date of said judgment, amounting to $ 350.93, making a total in his hands of $ 2,074.36, and he credited himself, among other charges, as follows: "For fees as administrator, $ 500; for expenses as such administrator, $ 250; for interest on these two credits, from September, 1886, $ 146.38; some $ 200 or $ 300 for attorney's fees, and $ 32.85 for costs in the Supreme Court, etc."
To this report the appellant and other creditors filed exceptions.
On July 10, 1891, the court disapproved the report, and, on the 15th day of September, 1891, the appellee filed another report containing the above items with which he had credited himself in his previous report.
At this stage of the proceedings the appellant filed an affidavit for a change of venue from the court, on account of bias and prejudice. This motion was overruled by the court, and this ruling of the court is the first question presented on this appeal.
Section 412, R. S. 1881, provides that "
The language of the statute is clear, and does not leave it optional with the court or judge to grant or refuse the application. It is mandatory, and to refuse to grant it, when properly made, is reversible error. Brow v. Levy, 3 Ind.App. 464, 29 N.E. 417; Witter v. Taylor, 7 Ind. 110; Shaw v. Hamilton, 10 Ind. 182; Shattuck v Myers, 13 Ind. 46; Fisk v. Patriot, etc., Turnpike Co., 54 Ind. 479; Krutz v. Griffith, Admr., 68 Ind. 444; Krutz v. Howard, 70 Ind. 174; Shoemaker v. Smith, 74 Ind. 71; Heshion v. Pressley, 80 Ind. 490; Burkett v. Holman, 104 Ind. 6, 3 N.E. 406; Moore v. Sargent, 112 Ind....
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