Rosenberg v. American Trust And Savings Bank of Whiting

• Decision Date: 29 April 1927
• Docket Number: 12,613
• Parties: ROSENBERG ET AL. v. AMERICAN TRUST AND SAVINGS BANK OF WHITING ET AL
• Court: Indiana Appellate Court

156 N.E. 411

86 Ind.App. 552

ROSENBERG ET AL. v. AMERICAN TRUST AND SAVINGS BANK OF WHITING ET AL

No. 12,613

Court of Appeals of Indiana

April 29, 1927

Rehearing denied July 1, 1927. Transfer denied December 6 1927.

From Lake Superior Court; Maurice E. Crites, Judge.

Suit by the American Trust and Savings Bank against Michael E Kozacik, Jr., and others to foreclose two mortgages, wherein the defendants Kozacik filed a cross-complaint against their codefendants to quiet title. From a decree for the plaintiffs and for the cross-complainants on their cross-complaint, the defendants thereto appeal.

Affirmed.

William J. Whinery, for appellants.

William J. McAleer, Francis J. Dorsey, Gerald A. Gillett, Perry R. Chapin and Roy E. Green, for appellees.

NICHOLS, J. Dausman, J., absent.

OPINION

NICHOLS, J.

Action by appellee American Trust and Savings Bank against appellees Kozacik and Kozacik and appellants to foreclose two mortgages upon certain real estate in Indiana Harbor, East Chicago, Indiana. It was shown to the court that appellants Nora, Ralph and Raymond Rosenberg were minors; and the court, thereupon, appointed William J. Whinery as their guardian ad litem. There was an answer in denial to the complaint.

Appellees Kozacik filed a cross-complaint in said cause against appellants to quiet title to said real estate as against them. There was an answer in denial to the cross-complaint.

No contention was made by any party at the trial as against the validity and amounts of the respective mortgages put in suit by the complaint and, consequently, the court decreed their foreclosure as against all parties.

In addition to this decree, the court found in favor of appellees Kozacik and Kozacik upon their cross-complaint and against appellants, and that said appellees' title should be quieted in them, and rendered judgment accordingly against appellants, from which, after appellants' motion for a new trial was overruled, this appeal is prosecuted, appellants assigning as error the action of the court in overruling their motion for a new trial.

It appears by the undisputed facts that, on June 15, 1921, one Franklin P. Rosenberg was the husband of appellant Linnie A. Rosenberg, and was the owner of the real estate in question. On that date, he, his wife joining, executed a mortgage upon the real estate in question to appellee bank for $ 4,500, this being one of the mortgages subsequently foreclosed in this action. On September 25, 1923, while still the owner of said real estate, the said Franklin P. Rosenberg executed, his said wife joining, a second mortgage for $ 1,500, which mortgage, by subsequent assignment, became the property of appellee bank and was the other mortgage foreclosed in this action.

Subsequently, appellant Linnie A. Rosenberg secured a divorce from her husband, and, by the terms of the decree, she was awarded a judgment for alimony in the sum of $ 1,150, the custody of said three minor children, appellants Nora, Ralph and Raymond Rosenberg, and, by the terms of the decree, it was ordered that "the defendant [Franklin P. Rosenberg] should pay into the office of the clerk of this court, for the use of the plaintiff in maintaining said children, the sum of $ 125 per month, payable in semi-monthly installments of $ 62.50 each, on the 16th and last days of each calendar month."

The judgment for alimony in the sum of $ 1,150 was paid by said Franklin P. Rosenberg and satisfied upon the judgment docket of the court below, and he paid into the clerk's office of the Lake Superior Court the allowance made to his former wife, each of the installments so ordered paid for the support of his children from January 31, 1923, to June 18, 1923, and thereafter he failed to pay anything on that account, and his whereabouts became unknown, or at least his visits to this state were at very infrequent intervals. Nothing was paid by him for the support of the three children after the last named date.

On June 16, 1923, describing himself as a divorced man, he conveyed the real estate in question to appellee Michael E. Kozacik, Jr.

Upon the trial, appellants claimed that the allowance of $ 125 per month to appellant Linnie A. Rosenberg for the support of the minor children constituted a judgment, and was a lien upon the real estate in question, and that appellants should be decreed to have a third lien thereon as against appellees Kozacik. But the...