Owen v. Dresback
| Decision Date | 26 January 1900 |
| Docket Number | 19,139 |
| Citation | 56 N.E. 22,154 Ind. 392 |
| Parties | Owen et al. v. Dresback |
| Court | Indiana Supreme Court |
Rehearing Denied March 28, 1900, Reported at: 154 Ind. 392 at 394.
From the Grant Circuit Court.
Appeal dismissed.
A. E Steele, J. A. Kersey, Knight & Brown, R. O. Hawkins and H. E. Smith, for appellants.
W. D Lett, W. E. Haisley and A. DeWolf, for appellee.
Owen began this suit against the Chicago, Indiana and Eastern Railway Company to enforce a lien upon its property, and made Dresback, Shultz, Shultz and Shultz, the Illinois Trust and Savings Bank, trustee, and others, parties defendant to answer as to their interests. Dresback filed a cross-complaint to enforce a lien against the lands of the railway company, alleging therein that the Illinois Trust and Savings Bank as trustee, Charles S. Owen, Charles Wilhour, William W. Shultz, James M. Shultz, Alexander Shultz, Quile Horton, Samuel L. Howard and J. S. McNair severally claimed to have liens upon the railroad and that his lien was prior and superior to any claim or interest of any of them. Shultz, Shultz and Shultz, and the other parties filed answers to Dresback's cross-complaint. The complaint and the cross-complaints of the other parties were dismissed, and the cause was determined upon the cross-complaint of Dresback and the answers thereto. After the submission and while the court had the case under advisement, Shultz, Shultz and Shultz filed a petition showing to the court that they were partners doing business under the firm name of Shultz Brothers, and that in January, 1897, Charles L. Boyd had been appointed and had qualified as receiver for the firm, and asked that he be substituted as a party in the cause in the place of the partners. Upon the consent of the other parties being filed, the court ordered that receiver Boyd be declared a party defendant and cross-complainant in the place of Shultz, Shultz and Shultz. The court found that the claim of Dresback was a lien upon the railway company's land, and judgment was rendered directing the lands to be sold by the sheriff "and the proceeds applied to the payment of cross-complainant Lewis C. Dresback's claim and costs, and the balance after paying claim and costs be paid to the clerk of this court for the use of the party lawfully authorized to receive the same". Separate motions of the Illinois Trust and Savings Bank, trustee, the Chicago, Indiana and Eastern Railway Company and Charles S. Owen for a new trial were overruled, and these parties prayed an appeal. But a term-time appeal was not perfected. The record discloses that the judgment was rendered June 26, 1897; motion for a new trial overruled June 27, 1897; no bond filed; notice of appeal to all parties, including Charles L. Boyd, receiver, served December 30, 1897; transcript filed in this court February 16, 1898; Charles L. Boyd or Charles L. Boyd, receiver, not named in the assignment of errors.
Appellee contends that the appeal must be dismissed. By the appointment of the receiver for the partnership of Shultz Brothers the affairs of the firm were taken out of the hands of the partners. The receiver, on being substituted as a party in this cause, represented the interests of the firm and Shultz Brothers ceased to be parties. The judgment of the court that appellee's claim was a lien upon the lands of the railway company and that the lands be sold and appellee's claim and costs be first paid and the balance be brought into court for those authorized to receive it, was necessarily a judgment that appellee's lien was superior to all others and was a judgment against the receiver from which he had a right to appeal. It bound the...
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