Metzner v. Bauer

• Decision Date: 25 November 1884
• Docket Number: 11,353
• Citation: 98 Ind. 425
• Parties: Metzner et al. v. Bauer et ux
• Court: Indiana Supreme Court

98 Ind. 425

Metzner et al. v. Bauer et ux

No. 11,353

Supreme Court of Indiana

November 25, 1884

From the Dubois Circuit Court.

Reversed, at appellees' costs, with instructions to overrule the demurrers to the complaint, and for further proceedings.

L. N Dembitz, B. Buettner and O. A. Trippet, for appellants.

W. A Traylor and W. S. Hunter, for appellees.

OPINION

Hammond J.

Separate demurrers of the appellees were sustained by the court below to the appellants' complaint, and these rulings are assigned as error.

The facts alleged in the complaint, so far as it is material to state them, were substantially as follows:

John P. Zimmerman, of Jefferson county, Kentucky, died testate, and his will was duly admitted to probate. By his will, the appellant Matthaeus Metzner, a son of the testator's sister, the appellee Kunigunda, a daughter of the testator's brother, since intermarried with the appellee George Bauer, and others were made legatees. The will provided that certain real estate, of which the testator was seized at the time of his death, should be sold by his executor and the proceeds thereof paid to the legatees. In a proceeding in which the beneficiaries of the will were parties, in the chancery court of Louisville, Kentucky, the executor, by order of court, sold the real estate and paid the proceeds thereof into court. Appellee Kunigunda, afterwards, upon an order obtained from the court, received from the proceeds of the sale $ 881.70, as the portion supposed to belong to her under the will, on the theory that she took per stirpes. On appeal by Metzner to the Court of Appeals of Kentucky, said order of the chancery court of Louisville, directing payment of the above amount to said Kunigunda, was reversed, it being there decided that the legatees under the will took per capita instead of per stirpes. By this decision, Kunigunda was entitled to the sum of $ 545.60 only, as her portion of the proceeds of the sale of the testator's real estate, which, deducted from the amount paid her, left in her hands $ 336.10 to which she was not entitled. Averments are made in the complaint showing that of the amount so overpaid her, $ 315.79 belonged to the appellant Metzner, and should have been paid to him; and for this sum, with interest, this suit was brought.

The complaint shows that appellant Watts was duly appointed by said Louisville court as receiver to collect said sum due to Metzner; that such receiver was authorized to collect it by suit in his own name, or in an action jointly with Metzner, and that he qualified and gave bond. After receiving said money, appellee Kunigunda intermarried with her co-appellee, who, it is charged, received from her money and goods to an amount in excess of that due from her to Metzner. It is also averred that her husband received from her the money in controversy, and invested it in certain described real estate, taking the title thereto in his own name. It is also charged that the appellees converted the money to their own use. The relief prayed was for judgment in the sum of $ 600, that the judgment be declared a lien upon the real estate mentioned, and that such land be sold to pay appellants' claim, etc.

Appellees' demurrers to the complaint were upon the grounds that appellants did not have legal capacity to sue; that there was a defect in parties plaintiffs, for the reason that the legatees named in the will of John P. Zimmerman should have joined as plaintiffs; that there was a defect of parties defendants, for the reason that said legatees should have been made defendants; and that the appellants' complaint did not state facts sufficient to constitute a cause of action.

No reason is suggested why the appellant Metzner has not legal capacity to sue, and we have not been able to discover any from the complaint. If it...