Miller v. Ortman

• Decision Date: 12 July 1956
• Docket Number: No. 29455,29455
• Parties: J. Carter MILLER, both individually and d/b/a Midwest Supply Company, Appellant, v. Alva ORTMAN, both individually and as a Director and/or Vice-President of Ortman-Miller Machine Company, Inc., Carl Speichert, both individually and as Director and/or Secreatary-Treasurer of Ortman-Miller Machine Co., Inc., Harold Ortman and Nelson Ortman, both individually and as Directors of Ortman-Miller Machine Co., Inc., and Indiana Corporation; Straley Thorpe and Ortman-Miller Machine Co., Inc., Appellees.
• Court: Indiana Supreme Court

Page 17

136 N.E.2d 17

235 Ind. 641

J. Carter MILLER, both individually and d/b/a Midwest Supply Company, Appellant, v. Alva ORTMAN, both individually and as a Director and/or Vice-President of Ortman-Miller Machine Company, Inc. Carl Speichert, both individually and as Director and/or Secreatary-Treasurer of Ortman-Miller Machine Co., Inc. Harold Ortman and Nelson Ortman, both individually and as Directors of Ortman-Miller Machine Co., Inc., and Indiana Corporation Straley Thorpe and Ortman-Miller Machine Co., Inc., Appellees.

No. 29455.

Supreme Court of Indiana.

July 12, 1956.

Crumpacker & Schroer, Owen W. Crumpacker, Edmund A. Schroer, Theodore M. Gemberling and Lowell Enslen, Hammond, for appellant.

Straley Thorpe, James J. Richards and Eugene D. Tyler, Hammond, Cope J. Hanley, Rennselaer, for appellee.

ACHOR, Judge.

This is an action for the malicious destruction and appropriation of a business operated by appellant J. Carter Miller, d/b/a Midwest Supply Company. A judgment for the appellees was affirmed by the Appellate Court. At the outset, we are confronted with the contention that transfer to this court should be denied for the reason that the petition for rehearing filed in the Appellate Court did not conform to Rule 2-22 of this court. The issue is significant because of the fact that the filing of a valid petition for rehearing in the Appellate Court, asserting the errors relied upon, is a condition precedent to the granting of a transfer in this court. However, under the circumstances of this case, the issue of the right of this court to consider the case on petition to transfer is dependent upon the answer to two questions: (1) Was the petition for rehearing so defective as to warrant its total rejection by the Appellate Court? (2) Did that court, by discussing the issues presented by the petition, in an opinion supplemental thereto, in effect waive any defects in the form of the petition?

We will first consider the sufficiency of the form of appellant's petition for rehearing: Rule 2-22 provides in part as follows: 'Application for a rehearing of any cause shall be made by petition, separate from the briefs, * * * stating concisely the reasons why the decision is thought to be erroneous. * * *'

On examining the petition, it is apparent that the petition was not made and filed under separate cover from the briefs. Was this failure, in itself, sufficient cause for refusing to consider either the petition or the argument in support thereof? Although Rule 2-22 merely states that the application shall be made by petition, separate from the briefs, and does not expressly state that the petition and briefs shall be filed under separate cover, we consider such to be the intention of the rule. Therefore, the first question we must decide is whether such failure is cause for arbitrary rejection of the pleading in toto. Appellees contend that it is and, in support of their position, cite the cases of Terre Haute, etc., Traction Co. v. Scott, 1930, 91 Ind.App. 690, 170 N.E. 341, 172 N.E. 659, and Baltimore & O. S. W. R. Co. v. Conoyer, 1897, 149 Ind. 524, 48 N.E. 352, 49 N.E. 452. In each of these cases the court held that the petition for rehearing presented no issue because of the failure to conform to a similar rule. However, an examination of each of these cases discloses that the 'petitions' consisted only of a reargument of the respective cases on their merits, without the benefit of any concise statement of the reasons why the respective decisions were thought to be erroneous. Clearly, a 'petition for rehearing' so drafted presents no issue any more than would the argument portion of a brief without an assignment of errors.

However, we are here presented with a different situation. The petition as drafted first sets forth in 'summary' form the numerous particulars wherein appellant asserts that the decision of the Appellate Court was erroneous. This 'summary of the petition for rehearing' gives the page number within the petition where each of said summarized errors is again stated in condensed form, separate from and followed by an argument in support thereof.

Under the circumstances presented, was it proper for the Appellate Court to refuse to consider the petition for rehearing because of appellant's failure to file his petition and briefs under separate cover, even though certain of the grounds relied upon for rehearing are clearly and concisely stated in rhetorical form separate from the argument in support thereof? In answering this, we are confronted with these considerations: (1) The fact that the proceedings is already before the court, and therefore the form of the petition is not jurisdictional; (2) the declared policy of both the legislature ¹ and our courts ² is to liberally construe our rules of procedure to the end that, where possible, litigants may have their cases determined upon the merits.

Under the circumstances presented, we are of the opinion that we should be guided by the test as to whether appellant has made a good-faith effort to comply with the rule. ³ We judicially know that heretofore our courts have considered numerous cases on petition for rehearing and transfer where the petition for rehearing and briefs in support thereof have been composed separately but filed under a single cover, although the issue has not heretofore been specifically raised. Because of this practice in which our courts have acquiesced, and because the rule does not expressly exclude the construction which appellant gave it, we cannot say that appellant did not make a good-faith effort to comply with the actual intent of the rule. Because of the complexity of issues in this appeal many issues are raised in the petition for rehearing. It is a fact that, in some instances, the reasons relied upon are not concisely stated separate from the argument. They are therefore ignored. However, in those instances where the reasons relied upon are concisely state in rhetorical form separate from the argument in support of the particular issue, such reasons should have been considered by the Appellate Court.

We therefore proceed to consider the case upon its merits. Among the alleged errors stated in the petition for rehearing, and now asserted as cause for transfer, is the failure of both the trial court and the Appellate Court to comprehend the theory of the action as an action for injunctive relief against the malicious destruction and appropriation of appellant's separate and lawful business. Appellant asserts that this failure is apparent from the opinion of the Appellate Court, which expressly misdescribes the action as charging appellees '* * * with having conpired to unlawfully force a breach of a certain contract between Midwest (appellant) and the Corporation (appellees), * * *.' ⁴ (Our italics.) Appellant also asserts that this failure of the trial court to comprehend the theory of the action is made apparent from the findings of fact and conclusions of law which the court both stated and failed to state.

Also, as heretofore stated, appellant asserts that the decision of the Appellate Court contravenes the ruling precedent of this court, relative to injunctive relief against tortious destruction of a business, as established in the cases of Jackson v. Stanfield, supra, and Shoemaker v. South Bend Spark Arrester Co., supra.

We now proceed to consider upon the merits the above issues presented by appellant's petitions for rehearing and transfer. We begin with a statement as to the nature of the action: As heretofore stated by appellant in his petition for rehearing, this is an action brought by appellant, as an individual and as sole proprietor of Midwest Supply Company (hereinafter referred to as 'Midwest'), in the Lake Circuit Court, against appellees Alva Ortman, Carl Speichert, Nelson Ortman and Harold Ortman, individually and as officers and directors of appellee Ortman-Miller Machine Company, Inc. (hereinafter referred to as the 'Corporation') and appellee Straley Thorpe, as an individual. Appellee 'Corporation' was granted leave to intervene as a party-defendant. The action is in equity for an injunction and damages because of the alleged acts committed pursuant to conspiracy by the appellees, as individuals and officers of the 'Corporation,' to tortiously destroy appellant's separate business as Midwest Supply Company, and to appropriate that business for their mutual benefit.

The primary tortious acts allegedly committed by appellees in the consummation of such conspiracy are as follows: (a) Deposing appellant as President of the 'Corporation' and appropriating his salary and income therefrom; (b) forcing and accomplishing a breach between 'Midwest' and its dealers and sales representatives with the further purpose of destroying 'Midwest' and appropriating said dealers sales representatives and profits to themselves.

Special findings of fact and conclusions of law were requested and stated by the trial court. The findings as stated contained many evidentiary facts and conclusions of fact and law which are improper. However, because the issues which we must consider in deciding this case deal largely with these evidentiary facts, ultimate facts and conclusions of fact and of law, they are hereinafter set out in full 'Plaintiff, J. Carter Miller, filed this action in the Lake Circuit Court at Crown Point, Indiana, on March 13, 1952. He brings the action in his individual capacity and as the sole owner and proprietor of a business carried on by him under the firm name and style of Midwest Supply Company, 706 Wentworth Avenue, Calumet City, Illinois. The Midwest Supply Company (hereinafter referred to in these findings as 'Midwest') is a machine tool and accessory distributor with dealers and sales representatives located in various industrial areas throughout the United States and Canada. As such distributor it purchases and sells, through its dealers and...