Polk v. Johnson

• Decision Date: 03 October 1906
• Docket Number: 20,896
• Citation: Polk v. Johnson, 167 Ind. 548, 78 N. E. 652 (Ind. 1906)
• Parties: Polk v. Johnson, Receiver
• Court: Indiana Supreme Court

78 N.E. 652

167 Ind. 548

Polk v. Johnson, Receiver

No. 20,896

Supreme Court of Indiana

October 3, 1906

Rehearing Denied December 20, 1906, Reported at: 167 Ind. 548 at 551.

From Johnson Circuit Court; Vinson Carter, Special Judge.

Claim for services by Grafton Johnson, as the receiver of the property of James T. Polk, against which James T. Polk excepts. From an allowance of $ 9,500, the exceptor appeals. Appealed from Appellate Court under subd. 3, § 1337j Burns 1901, Acts 1901, p. 565, § 10.

Appeal dismissed.

L. Ert Slack, L. J. Hackney, Charles F. Coffin and Wilson &amp Townley, for appellant.

Miller Shirely & Miller, R. M. Miller, H. C. Barnett and E. A McAlpin, for appellee.

OPINION

Montgomery, J.

Appellee filed his resignation and report as receiver of appellant's property, in which he asked an allowance of $ 20,000 for services, to which appellant excepted. A part of the exception was stricken out on appellee's motion, for which error the judgment was reversed by this court. Polk v. Johnson (1903), 160 Ind. 292, 66 N.E. 752. Appellee's resignation was accepted, and the Central Trust Company appointed and qualified as his successor, and upon the return of the cause to the court below appellee replied to appellant's exception by general denial and by affirmative allegations. Appellant's demurrers to the affirmative paragraphs of reply were overruled. A trial upon the issues so formed resulted in the following judgment: "And the court, having duly considered the evidence in the case, does now find that the exception filed by said James T. Polk to the amended final report of Grafton Johnson, receiver, heretofore filed in the case, contesting an allowance for compensation in the amount of $ 20,000, asked for by said Johnson in said report, as to the sum of $ 10,500, part and parcel of said $ 20,000, said exception ought to be and the same is hereby sustained, but that as to $ 9,500, the remaining part and parcel of said claim, said exception is overruled; and the court doth further find that compensation to the amount of $ 9,500 ought to be and the same is hereby allowed to said Grafton Johnson for his services in said receivership, in addition to what has heretofore been allowed; and it is further ordered, adjudged, and decreed by the court that said Grafton Johnson be, and he is hereby, allowed the sum of $ 9,500 as additional compensation in full for services rendered in said receivership, and the present receiver, the Central Trust Company of Indianapolis, Indiana, be, and it is hereby, ordered and directed to pay said sum of $ 9,500 to said Grafton Johnson as such compensation, taking his receipt in full therefor. And it is further ordered that the costs of the proceedings upon the exception to said report be paid out of the funds of the trust."

Appellant prosecuted an appeal from this judgment to the Appellate Court, which court overruled appellee's motion to dismiss the appeal and affirmed the judgment. A further appeal to this court has been taken, and it is urged that the circuit court erred in overruling appellant's demurrers to the affirmative paragraphs of reply, and in overruling his motion for a new trial.

Appellee has properly presented his motion to dismiss the appeal, and insists that the same should be sustained, for the reasons (1) that appellant is not the real party in interest, and (2) because there is a...