Mueller v. Stinesville & Bloomington Stone Company
| Decision Date | 20 February 1900 |
| Docket Number | 18,933 |
| Citation | 56 N.E. 222,154 Ind. 230 |
| Parties | Mueller v. The Stinesville and Bloomington Stone Company et al |
| Court | Indiana Supreme Court |
From the Monroe Circuit Court.
Reversed.
T. J Louden and J. H. Louden, for appellant.
H. C Duncan, I. C. Batman and W. M. Louden, for appellees.
The First National Bank of Bloomington brought foreclosure against Malone and Pickel, makers of the note and mortgage the Stinesville Stone Company, as purchaser of the mortgaged premises, and Mueller, the appellant, as a junior mortgagee of the Stone Company.
Upon motion of the plaintiff, William M. Louden was appointed a receiver, and ordered to take charge of and preserve the mortgaged property. Mueller filed a cross-complaint to foreclose his mortgage, making defendants thereto his codefendants and the plaintiff. The defendants, to each the complaint and cross-complaint, made default, and on June 21, 1897, judgment and decree were given in favor of the plaintiff bank for $ 7,933, as a first, and in favor of the cross-complainant, Mueller, for $ 16,905, as a second, lien, and the property ordered sold by the sheriff, and the proceeds applied--First, to the payment of the costs; second, to the payment of the bank's judgment; third, to the payment of Mueller's judgment; fourth, the balance to be paid into court for further orders. On the day following the entry of the decree of foreclosure, upon his application, the court ordered the mortgaged property sold by the receiver, the order reciting, among other things, that the plaintiff bank and cross-complainant Mueller had some interest therein. On July 22, 1897, the receiver sold the property for $ 9,600, in accordance with the order of sale. On September 27, 1897, appellee, the Stinesville & Bloomington Stone Company, came into said foreclosure proceeding, and applied for permission to prosecute a suit "on an account" against the defendant, Stinesville Stone Company, and Louden, receiver thereof, which leave was granted, and the claim allowed against the receiver for $ 397.49. No special lien or equity in the property of the Stinesville Stone Company was asserted or alleged by the intervener, as appears from the record, and the judgment in his favor was a general allowance against the receiver. On October 15th, the receiver made a report of sale of the mortgaged property, which sale was confirmed, and the receiver ordered to execute to the purchaser a deed of conveyance upon full payment of the purchase money. On November 4, 1897, the receiver was ordered by the court to, and did, give two weeks' notice, by publication, to creditors of the Stinesville Stone Company to file their claims on or before the first day of the next term of court, to begin on the second Monday of January, 1898. On January 22, 1898, the receiver reported to the court full payment of the purchase money, and that he had on hands, principal and interest, $ 9,744, which the court ordered paid to the clerk for further orders of the court. On January 24, 1898, the receiver filed his account of receipts and disbursements, showing a balance for distribution of $ 9,678, which report was approved, and the receiver discharged; whereupon the appellee, the Stinesville & Bloomington Stone Company, the First National Bank of Bloomington, and appellant, Mueller, each filed a separate petition and motion for distribution of the fund in court, arising from the sale of the mortgaged property.
The motion of the Stone Company recited the various proceedings of the foreclosure, and the rendition of the several judgments and decrees in favor of the plaintiff bank and cross-complainant, Mueller, and the order of liens and payment that should be observed by the sheriff. It also recited the order of sale granted to the receiver, and averred "that in said order of sale there was no order whatever for the distribution or application of the fund derived from said sale; nor did either the said Mueller or the said plaintiff bank appear to or in any way answer said petition; and there was no order of said court of any kind fixing or determining their rights in said real estate, or said property ordered sold, or in any way fixing or determining their liens, or from what fund they should be paid"; that notice was given, under the order of the court, for creditors of the Stinesville Stone Company to file their claims on or before the January term, 1898 that the petitioner had, upon leave granted, prosecuted a claim against the receiver, and was allowed the sum of $ 397.49, payable out of funds in his hands applicable thereto; that since said notice to creditors, the petitioner's claim is...
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