Pilliod v. Angola Railway And Power Company
| Decision Date | 10 May 1910 |
| Docket Number | 6,684 |
| Citation | 91 N.E. 829,46 Ind.App. 719 |
| Parties | PILLIOD ET AL. v. ANGOLA RAILWAY AND POWER COMPANY |
| Court | Indiana Appellate Court |
Rehearing denied November 17, 1910. Transfer denied January 13, 1911.
From Dekalb Circuit Court; Lemuel W. Royse, Special Judge.
Suit by the Angola Railway and Power Company against Charles J Pilliod, and others. From a decree for plaintiff, defendants appeal.
Affirmed.
P. V Hoffman and Brown & Carlin, for appellant Charles J. Pilliod.
Vesey & Vesey and Sol A. Wood, for appellee.
OPINION
This suit was brought by the appellee against appellants and certain other parties, to quiet title to certain real estate described in the complaint, and to enjoin appellants from asserting title thereto. Cross-complaints were filed by defendants Charles J. Pilliod, the National Mill, Water and Light Company and the Ohio and Indiana Rail- way Company. Issues were formed on the complaint and cross-complaints, the cause was tried, and a finding, judgment and decree rendered in favor of appellee against all the parties to the proceeding, and its title in and to the premises quieted. Appellant Pilliod's separate motion for a new trial was overruled, and the questions presented on this appeal arise upon this action of the court.
It appears from the evidence that appellee claims to have derived title to the property described in the complaint from two sources: (1) Through a deed from the receiver in the case of Fort Wayne Trust Company v. National Mill, Water and Light Company et al., by which appellee claims to have acquired title to certain specific pieces of real estate, described in the complaint; and (2) by a deed from the receiver in the case of Gus F. Smith v. Ohio and Indiana Railway Company, by which it claims to have acquired title to the railroad property described in the complaint.
It is claimed by appellants that their motion for a new trial should have been sustained, for the reason, among others, that it appears affirmatively from the evidence that appellee has joined two separate and distinct causes of action in one, and that the objection to such misjoinder is properly presented upon the evidence, and could not be raised by motion to separate the causes of action, or by a demurrer to the complaint for misjoinder of causes, for the reason that the objection did not appear upon the face of the complaint. There is nothing in this point. The objection, if it exists, does appear upon the face of the complaint. It appears that appellee is seeking to quiet title to two distinct tracts of real estate, and appellants could, by motion, have required appellee to set forth the sources of its title. The objection raised would thus have been made apparent, and could have been taken advantage of by motion to separate the causes of action, or by demurrer, and since appellants have gone to trial with the issues in such condition and thus have taken their chances to win on the merits, they will not now be permitted to raise a question of the misjoinder of causes of action.
It appears from the evidence that on January 14, 1898, and for some time prior thereto, appellant, Charles J. Pilliod and William G. Croxton and John J. Kinney were the owners, as partners, of certain real estate described in the complaint, consisting of a gristmill property, an elevator, an electric light plant and a water plant; that they were engaged as partners in conducting various business enterprises, in which said property was used, among others, that of operating a gristmill, an elevator and a light and water plant which supplied the town of Angola and its citizens with light and water; that the legal title to the real estate owned by the firm was held in the names of William G. Croxton and John J. Kinney; that on said date the members of said firm, associating themselves with a son of William G. Croxton and a son of John J. Kinney, undertook to organize a corporation for the purpose of conducting the business theretofore carried on by the firm, to be known as the National Mill, Water and Light Company, and to this end filed articles of association in the office of the recorder of Steuben county, in which the property was located and the business was to be conducted, and in the office of the Secretary of State of the State of Indiana.
Upon the filing of said articles of association with the Secretary of State and with the recorder of said county, a certificate of incorporation was issued in due form by the Secretary of State purporting to incorporate said National Mill, Water and Light Company, and thereupon said William G. Croxton and John J. Kinney executed a deed conveying said real estate owned by said firm to said corporation, and the members of said firm assumed to turn over to said corporation all the property of the firm, and thereafter the various business enterprises that had been conducted by said partnership were carried on in the name of said corporation, the members of said firm acting as the officers and business managers of said alleged corporation.
On July 1, thereafter, said assumed corporation executed to the Fort Wayne Trust Company, as trustee, a mortgage to secure an issue of bonds of said assumed corporation in the sum of $ 30,000. These bonds were sold by said trustee, and the proceeds received by the officers of said corporation, assuming to act for the corporation, and used in said business. Afterwards suit was brought by the Fort Wayne Trust Company to foreclose said mortgage, and upon its petition, a receiver was appointed to take charge of and conserve the property described in the mortgage.
Appellants National Mill, Water and Light Company and Charles J. Pilliod, and the aforesaid John J. Kinney and William G. Croxton, were all made parties defendant to said foreclosure suit, and each was challenged by the complaint to set up any claim against plaintiff therein to the premises described in the mortgage.
To this complaint appellant Pilliod filed his answer and cross-complaint, in which he claimed to own a portion of the property described in the mortgage. The National Mill, Water and Light Company also filed an answer in said cause, and an answer was filed by plaintiff therein to the cross-complaint of Pilliod. While the case was pending some of the general creditors of said corporation filed an intervening petition in said suit, in which they alleged the indebtedness of the corporation to them, and averred its insolvency and the liability of its assets becoming wasted, and prayed that the powers and duties of the receiver be enlarged to those of a receiver of an insolvent corporation, for the benefit of all the creditors of the company. No formal notice of the pendency of this petition was served on defendant National Mill, Water and Light Company, but the record in the case recites as follows: Then follows the order of the court enlarging the duties and powers of the receiver theretofore appointed upon the petition of the plaintiff in the foreclosure suit, etc.
It also appears from the record that, after the order of the court was made enlarging the duties and powers of the receiver to that of a general receiver of an insolvent corporation, for the benefit of all its creditors, appellant Pilliod filed in said case a claim against the trust so created, and asked to have it allowed by the court as a preferred claim.
It further appears that after the receiver had, upon orders made by the court in said proceeding, sold all of the other property belonging to said corporation, he filed his petition therein, setting forth the fact that all the other property and assets of the corporation had been administered by him except the mortgaged property, and that the general debts still remained unpaid, and praying an order for the sale of the mortgaged premises, and the cause, as between the original plaintiff in said proceedings and all the defendants therein, being at issue, the issues thus presented, together with the receiver's said petition to sell said real estate, were all submitted by the parties to the court for trial, hearing and decree, and the whole matter, being thus before the court upon this submission, the court having heard all the evidence in the case, made a finding in favor of plaintiff in the case against all of the defendants, that it was entitled to a foreclosure of the mortgage sued upon, subject to certain rights in some of the parties. It also made a finding in favor of the receiver upon his petition, and that he was entitled to an order of sale of all the property in his possession, which was the property described in the mortgage. This finding was followed by a decree in favor of said plaintiff, foreclosing its mortgage, and by an order directing the sale of all the property by the receiver, and directing the distribution of the proceeds of the sale among the various claimants. This order was made and entered with all the parties present before the court, and without objection or exception by any of them, or motion to modify in any manner the judgment and order thus made. Afterwards, pursuant to and under this order of sale, the premises described in the mortgage were sold by the receiver, and a deed executed by him to the purchaser, and the sale and deed reported to the...
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