Pisarski v. Glowiszyn

• Decision Date: 04 May 1942
• Docket Number: 27712.
• Citation: 41 N.E.2d 358,220 Ind. 128
• Parties: PISARSKI et al. v. GLOWISZYN et al.
• Court: Indiana Supreme Court

41 N.E.2d 358

220 Ind. 128

PISARSKI et al. v. GLOWISZYN et al.

No. 27712.

Supreme Court of Indiana

May 4, 1942

Appeal from Superior Court, Porter County; Mark B. Rockwell judge.

M. Wm. Malczewski, of Gary, for appellants.

Henry G. Doherty, of East Gary, and Willis C. McMahan, of Gary, for appellee Glowiszyn.

RICHMAN Judge.

Appellee Thaddeus Glowiszyn, administrator of the estate of John Glowiszyn (hereinafter referred to as appellee), filed complaint against all the other parties to this appeal except appellant Val's Restaurant, Incorporated, which was permitted to intervene whereupon amended and supplemental complaint was filed which named as defendants Valentine Harry, Stella, Francis and Antoinette Pisarski, Helen Jalienecki, John Smolinski and Val's Restaurant Incorporated.

This complaint alleges that appellee on the 9th day of March 1938, procured judgment against Valentine Pisarski in the sum of $1,844.75, execution has been issued and returned nulla bona and that the judgment is wholly unpaid; that said judgment debtor owns personal property which he refuses to deliver up including the merchandise and equipment of a tavern in Gary, 'all together with money in currency of the United States of America in the sum of Three Thousand Dollars'; that he operates the tavern under the name of Val's Restaurant, Incorporated; that the corporation by that name was not authorized to do business at the time the action was filed and has no interest in the property; that all the other defendants are children of Valentine Pisarski and assert title to said property as individuals and stockholders of said corporation; that the property described is worth $3,000 in excess of the judgment debtor's exemptions; that he has other property unknown to plaintiff subject to execution which he unjustly refuses to apply toward the satisfaction of the judgment. The prayer of the complaint is for an order against Valentine Pisarski 'to appear to answer before this court concerning his property in Lake County, State of Indiana, subject to satisfaction of said judgment, and further to answer as to the property above described, and that the defendants above named be ordered to appear to answer as to any interest they may have in and to the above described property, for the costs of this action and all other and proper relief.'

Extensive hearings were held at which all the individual defendants and other witnesses were examined under oath. The evidence occupies 1,583 pages of the transcript. At the conclusion of the taking of evidence an order was entered which recites a finding that when the action was filed Stella Pisarski had on deposit in the Gary State Bank money, in excess of legal exemptions, sufficient to pay the judgment, that this money was the property of her father Valentine, that since the action was filed she withdrew the money from the bank and has it in her possession subject to the direction and control of her father and that it ought to be applied to the payment of the judgment. The order concludes as follows:

'It is ordered, adjudged and decreed that the defendants, Stella Pisarski and Valentine Pisarski, shall within sixty days, pay to the Clerk of this Court, for the use and benefit of the plaintiff, money in the sum sufficient to fully pay the plaintiff's judgment against the defendant Valentine Pisarski, in Cause Number 26488 in the Lake Circuit Court, Lake County, State of Indiana, in the sum of Eighteen Hundred Forty-four and seventy-five one-hundredths ($1844.75) Dollars, and costs therein, in the sum of $23.05 with interest thereon at six per cent from the 9th day of March, 1938, until said money is so paid to said Clerk, and together with a further sum of money sufficient to pay all costs in this cause.'

No other order or judgment was entered. It is to be noted that appellant Val's Restaurant, Incorporated, is not mentioned in that order. Valentine Pisarski does not appeal, but is named as an appellee in the assignment of errors. A cursory examination of the record discloses that the money which appellee Stella Pisarski is ordered to pay is claimed by appellants to belong to the corporate appellant.

The steps taken below after the entry of the order indicate that appellants and the trial court treated it as a final judgment. Motions for new trial were filed which were not necessary if the order was interlocutory. Goldsmith v City of Indianapolis, 1935, 208 Ind. 465, 196 N.E. 525. No attempt was made to follow the procedure applicable to appeals from interlocutory orders but...