Rooker v. Fid. Trust Co.

• Decision Date: 25 August 1931
• Docket Number: No. 25747.,25747.
• Citation: 202 Ind. 641,177 N.E. 454
• Parties: ROOKER et al. v. FIDELITY TRUST CO. et al.
• Court: Indiana Supreme Court

202 Ind. 641

177 N.E. 454

ROOKER et al.

v.FIDELITY TRUST CO. et al.

No. 25747.

Supreme Court of Indiana.

Aug. 25, 1931.

Appeal from Tipton Circuit Court; Cleon W. Mount, Judge.

Suit by William V. Rooker and others against the Fidelity Trust Company in its corporate capacity and also as trustee of the estate of Dora E. Rooker, and others. From the judgment, plaintiffs appeal.

Judgment and all orders of the trial court pertaining to the administration of the trust estate set aside, and case to be disposed of as indicated in the opinion.

William V. Rooker, of Indianapolis, for appellants.

Charles E. Cox and Henry Seyfried, both of Indianapolis, for appellees.

MYERS, J.

The record in this case begins with a statement, in substance, that on March 5, 1928, a transcript of the proceedings and papers filed in the Hamilton circuit court in cause No. 22763 was, on change of venue, filed in the Tipton circuit court and docketed under No. 855; that said transcript and the papers accompanying the same, at the time of making the transcript for this appeal, were not on file in the office of the clerk of the Tipton circuit court, and after diligent search they could not be found. Signed, “Irvin Miller, Clerk, Tipton Circuit Court.” Then follows an order-book entry showing a motion to strike out parts of the third paragraph of complaint, which paragraph is not included in the record. A copy of the motion, followed by an order-book entry showing that the motion had been sustained in part.

On April 10, 1928, it appears that an amended complaint in three paragraphs was filed by appellants against the Fidelity Trust Company and the Fidelity Trust Company as trustee of the estate of Dora E. Rooker. Each of these paragraphs demand the removal of the Fidelity Trust Company as trustee; that a new trustee be appointed; that the trust company, as trustee, be required to account in all matters affecting the trust, and in addition each of the first two paragraphs alleged facts upon which damages were demanded in the sum of $75,000. To this complaint the defendants filed what is denominated a third paragraph of answer, which is directed only to certain specific allegations of each paragraph of the amended complaint, to which plaintiffs filed a reply in general denial. Thereupon, from an order-book entry, of date September 13, 1928, the following appears: “And now this cause is submitted to the court for trial. Comes now the plaintiff and makes the opening statement, which statement is in the following words and figures, to-wit: (Oral). Comes now the defendant and makes and files a request that the portion of the statement defining issue to be taken by the reporter, which request is in the following words and figures, to-wit: (Oral). And now the court sustains said motion and said statement is taken.” No such statement appears in the record.

The defendants then file a written motion to withdraw answer, and ask leave to file a plea in abatement. The motion, in substance, states that counsel for plaintiffs in his opening statement stated that by their amended complaint in three paragraphs they were only demanding the removal of Fidelity Trust Company as trustee for the estate of Dora E. Rooker, and upon removal it be required to make an accounting to a trustee to be appointed, wherefore they request permission to withdraw their answer and file pleas to the jurisdiction of the court over the subject-matter and in abatement of the action. Over the objection of plaintiffs this motion was sustained. Defendants then filed a plea to the jurisdiction of the Tipton circuit court, upon the theory that all the matters then pending in that court were, on October 21, 1918, tried in the Hamilton circuit court, wherein judgment was rendered against the plaintiffs and in favor of the defendants, and the defendant trustee was ordered and directed to proceed with the execution of the trust, which cause of action was still pending in the Hamilton circuit court and undisposed of, and that the parties to that action and to this are the same. To this plea, plaintiffs filed a general denial. The issue thus formed was submitted to the court and resulted in a finding in favor of plaintiffs.

The defendants then filed a written motion to remand the proceedings to the Hamilton circuit court, stating that the two paragraphs of complaint filed in that court on July 12, 1927, was clearly intended to be an independent suit against the Fidelity Trust Company, trustee, and the Fidelity Trust Company in person, for damages for $75,000; that the third paragraph filed in the Tipton circuit court March 17, 1928, asked only the removal of the trust company as trustee and for an accounting; that in April, 1928, an amended complaint in three paragraphs was filed, substantially of the same character as the three original paragraphs, but that plaintiffs' counsel in his opening statement has limited the relief to the removal of the trustee and for an accounting. Wherefore, defendants move that the cause be remanded to the circuit court of Hamilton county, with the suggestion that it be docketed under cause No. 16338, Dora E. Rooker and William V. Rooker v. Fidelity Trust Company, Trustee, and Fidelity Trust Company, now pending in that court.

The motion to remand was overruled and the defendants then filed an answer in three paragraphs. This answer is not in the record. There seems to have been a motion to strike out the answer. This motion is not in the record. However, an order-book entry shows that the court overruled this last motion. A reply to the answer was filed, but it is not in the record. On September 14, 1928, the trial of the cause was resumed, and plaintiffs, at the close of their evidence, dismissed the cause of action as to the Fidelity Trust Company in its corporate capacity.

On November 13, 1928, the court, although not requested so to do, made seven specific findings of fact and entered judgment removing the Fidelity Trust Company as trustee, and appointed Thomas E. Kane of Hamilton county, Ind., trustee of the trust created by a trust agreement between plaintiffs and defendant, and made further orders pertaining to the sale of the Rooker lands in Hamilton county, and assumed jurisdiction over the administration of the trust estate.

On December 3, 1928, the trust company, as trustee, submitted to the Tipton circuit court its final report. On December 10, 1928, plaintiffs moved the Tipton circuit court to modify its judgment by eliminating six items specifically pointed out so that it would then include only the removal of the trust company as trustee, and also on the same date moved the court to remand the cause of action to the Hamilton circuit court. The motion to modify the judgment and motion to remand the cause were, on March 4, 1929, overruled. On January 21, 1929, the Rookers filed exceptionsto the final report of the trustee, and on February 22, 1929, defendant moved to strike out the exceptions to the final report, and to this motion the Rookers, on February 27, 1929, filed objections. On March 4, 1929, the court overruled the motion to strike out the exceptions to the final report and sustained the motion of the trust company as trustee to strike out the exceptions of the Rookers to its final report, except as to items 4, 7, and 8 of said exceptions.

Item 4 challenges the correctness of the report pertaining to the sale of grain and other products of the land of the trust estate, and charges that the reasonable rental value of the Hamilton county land was $2,500 per year, and that the trust company as trustee should be charged with that amount and interest for the years 1921 to 1928, both inclusive, in the aggregate, $30,000. Item 7 refers to the rents and profits of the Marion county land and charges that the report of the trustee as to the rents and profits reported were false and that the fair rental value of that land was $1,200 per year, with interest thereon for the years 1919 to 1928, both inclusive, aggregating $20,000; that said trustee fraudulently and corruptly transferred the title of the Marion county land to a holding company organized and composed of the officers, agents, servants, and attorneys of the trust company for the use and benefit of that company. Item 8 charges that so much of the final report showing proper care, maintenance, and preservation of the trust estate is false and that the recovery therefor should be denied, and instead, said trust company should be surcharged with the damages for wrongful acts done by its agents, servants, and employees in the destruction of certain buildings on the Hamilton county farm, together with the injury done the dwelling house thereon, its water system, sewer and drainage system, heating system, etc., and certain injury to the land which is pointed out, by which wrongful acts of said trustee committed, the trust estate has been damaged in the sum of $22,500.

On this record appellants have assigned eleven errors.

[1] 1, 5, and 6. By each of these assignments, as we understand the pleader, error is sought to be predicated on the judgment of the court, in that it included matters outside of the issues submitted to the court for trial, that is to say: (1) That the court erred in its judgment of November 13, 1928, by including therein matters other than the removal of the Fidelity Trust Company as trustee; (5) error of the court in appointing Thomas E. Kane as alias trustee to succeed the Fidelity Trust Company; (6) error of the court in its judgment directing the Fidelity Trust Company as trustee to file a final report in the Tipton circuit court. If the trial court exceeded its power in these respects, the only recognized procedure for correcting such mistakes is by motion to modify the judgment, which motion should designate particularly the corrections or changes desired by the moving party. The action of the court upon such motion timely filed, is the basis for an...