Schill v. Choate

• Decision Date: 26 May 1969
• Docket Number: No. 568,No. 2,568,2
• Citation: 17 Ind.Dec. 601,247 N.E.2d 688,144 Ind.App. 543
• Parties: Jerry SCHILL and Mary Schill, Appellants, v. John D. CHOATE and Mildred Choate, Appellees. A 93
• Court: Indiana Appellate Court

Page 688

247 N.E.2d 688

144 Ind.App. 543

Jerry SCHILL and Mary Schill, Appellants, v. John D. CHOATE and Mildred Choate, Appellees.

No. 568 A 93.

Appellate Court of Indiana, Division No. 2.

May 26, 1969.

Donald R. Willsey and Benton R. Millis, Indianapolis, for appellants

James W. Bradford, Buck & Bradford, Indianapolis, for appellees.

SHARP, Judge.

This action was commenced by the Appellees-Plaintiffs, John D. Choate and Mildred Choate, by filing a complaint to cancel conditional sales contract, ejectment and restraining orders wherein the Appellants, Jerry Schill and Mary Schill and also Picciones, Indianapolis Fruit Company, Inc., and A. J. Comella, were named party defendants. The salient allegations of the complaint are (a) the Appellants are The Defendants, Indianapolis Fruit Co., Inc. and A. J. Comella, have filed answer and disclaimer.

the owners of certain real estate in Marion County, Indiana[144 Ind.App. 545] and of certain personal property located on said real estate, (b) that Appellees and Defendants, Picciones, entered into a conditional sales contract on January 15, 1962, where Appellees were sellers and Picciones were buyers, the subject of which was the real estate and personal property referred to, which contract provided for the payment by the Picciones to Appellees of the sum of $200.00 per month as principal and interest and Picciones have failed to make these payments as agreed, also Picciones failed to keep the property insured as agreed and failed to pay the taxes on the property as agreed, that the delinquency on principal and interest is in excess of $1600.00, that Appellees have made demands on Defendants, Picciones, to no avail, (c) Appellants have an interest in the above described property by virtue of a judgment against the Defendants, Picciones, by virtue of a purported sale of Picciones' interest in the above contract at a Sheriff's sale upon execution of their judgment and Appellants are made party defendants to present whatever claim they may have as to the property above described, (d) the Defendants, Indianapolis Fruit Co., Inc. and A. J. Comella, are attempting to assert an interest in this property by virtue of an action filed in the Marion Circuit Court and are made parties to present whatever claim they have, (e) request restraining order to prevent removal of any personal property, (f) contract should be cancelled, and (g) Appellees should have immediate possession of property.

On March 15, 1967, the trial court granted a default judgment against the Defendants, Picciones. This judgment cancelled any right, title or interest which the Picciones as the contract purchasers had in this instant conditional sales contract.

The Appellees thereafter filed a verified Motion for Summary Judgment against Appellants, Jerry Schill and Mary Schill, which motion, without formal parts, states:

'Come now the plaintiffs and move the Court for a Summary Judgment in their favor in the above-captioned cause against the defendants, Jerry Schill and Mary Schill, Indianapolis Fruit Co., Inc., and A. J. Comella and in support of their Motion, show the Court as follows:

'1. That on the 23rd day of February, 1967, the plaintiffs filed their action against the defendants to Cancel Conditional Sales Contract as to Real Estate and Personal Property, Ejectment and Restraining Orders.

'2. That judgment was rendered against the defendants, Angelo Piccione and Pasqualina Piccone on March 15, 1967 cancelling any right, title or interest that Angelo Piccione and Pasqualina Piccione had in a certain Conditional Sales Contract as to the real property and personal property enumerated in such Conditional Sales Contract, a copy of which is attached to this Motion and marked as 'Exhibit A' for identification; by reference thereto, 'Exhibit A' is a part of this Motion.

'3. That at all times from the date of the plaintiff's complaint as hereinbefore alleged, the defendants, Piccione, were in possession of the property set forth in 'Exhibit A' and the other defendants had no possession whatever of said property, with the plaintiffs taking possession of said property under an Ejectment Bond on March 8, 1967 and having continuous possession of said property to this date.

'4. That the defendants, A. J. Comella and Indianapolis Fruit Co., Inc. have filed in this cause an 'Answer and Disclaimer', disclaiming any interest in this action and the plaintiffs are requesting, in the event their Motion is sustained, that no costs be assessed individually against A. J. Comella or the Indianapolis Fruit Co., Inc.

'5. That the plaintiffs are the record titleholders and sole owners of the real estate and personal property described in '6. That in January of 1962 the plaintiffs entered into a Conditional Sales Contract with the defendants, Angelo Piccione and Pasqualina Piccione, which is set forth in 'Exhibit A' of this complaint, which Contract continued until the same was cancelled on March 15, 1967, by this Court.

'Exhibit A' to this Motion and have been such before and continuous since January of 1962.

'7. That the plaintiffs had no business transactions whatever with the defendants, Jerry Schill, Mary Schill, Indianapolis Fruit Co., Inc. or A. J. Comella in regard to the property set forth in 'Exhibit A' of this Motion.

'8. That the defendants, Jerry Schill and Mary Schill are purporting to claim an interest in the property described in 'Exhibit A' by virtue of a purported purchase of the interest of the defendants, Angelo Piccione and Pasqualina Piccione, at a Sheriffs Sale in the year 1966 on a judgment rendered in their favor against Angelo Piccione and Pasqualina Piccione and execution by the Sheriff of Marion County upon the purported interest of the Picciones in the Conditional Sales Contract attached to this Motion as 'Exhibit A', all of which proceedings the plaintiffs allege are without effect and are unlawful.

'9. That the plaintiffs were never a party to any action filed by Mary Schill, Jerry Schill, Indianapolis Fruit Co., Inc. or A. J. Comella involving the real estate or personal property set forth in 'Exhibit A', nor did they ever consent to a transfer of the Piccione's interest in the Contract marked 'Exhibit A' to said defendants, nor did they have any knowledge of the purported sale upon execution of the Piccione's Conditional Sales Contract interest to Mr. and Mrs. Jerry Schill as aforesaid. That none of the defendants, being Jerry Schill, Mary Schill, A. J. Comella or the Indianapolis Fruit Co., Inc., have any contractual dealings with the plaintiffs in regard to the property set forth in 'Exhibit A' to this Motion nor in any other manner.

'10. That there is no dispute as to the facts regarding the plaintiffs and the defendants herein and the defendants, Indianapolis Fruit Co., Inc. and A. J. Comella, are making no claim upon the property described in 'Exhibit A' of this Complaint.

'11. That the only claim of interest that the defendants, Jerry Schill, and Mary Schill are maintaining as to an interest in the property described in 'Exhibit A' is virtue of their purchase of the Conditional Sales Contract equity of Angelo Piccione and Pasqualina Piccione upon execution by the Sheriff of Marion County on a matter which is not related to the property described in 'Exhibit A' and which the plaintiffs had no knowledge at the time of said alleged purchase at Sheriffs Sale, nor did the plaintiffs in any way consent to a transfer of Mr. and Mrs. Piccione's interest to Jerry Schill or Mary Schill.

'12. That a condition of the Conditional Sales Contract attached hereto and marked 'Exhibit A' is that said Contract could not be assigned without the written consent of the Contract sellers, being John D. Choate and Mildred Choate, which consent was never requested, nor was ever given by John D. Choate or Mildred Choate to any of the defendants herein.

'13. That on March 15, 1967 any equity that Angelo Piccione and Pasqualina Piccione had in the Conditional Sales Contract attached to this Motion and marked as 'Exhibit A' was cancelled by this Honorable Court, said Judgment Entry providing that Angelo Piccione and Pasqualina Piccione have no further right, title or interest to the property as set forth in 'Exhibit A' of this Motion, and the Court is requested to take judicial notice of its Judgment Entry of March 15, 1967 in this cause.

'WHEREFORE, plaintiffs pray that a Summary Judgment be entered in their favor against the defendants, Jerry Schill, Mary Schill, A. J. Comella and Indianapolis Fruit Co., Inc., and that the costs of this action be assessed against the defendant Appellees' Motion for Summary Judgment was opposed by the following affidavit of the Appellants:

Jerry Schill and Mary Schill, and for all other relief proper in the premises.'

'Comes now Jerry Schill and Mary Schill, defendants in this action, who first being duly sworn upon oath depose and say:

'1. That they are defendants in the above entitled cause of action; that said cause is brought to cancel a conditional sales contract, for ejectment and restraining orders against Angelo Piccione and Pasqualina Piccione in regard to certain real estate commonly known as 1617 S. East Street, Indianapolis, Indiana, in which defendants, Mary Schill and Jerry Schill have an interest pursuant to a sheriff's sale dated November 16, 1966; that proper notice of said sale was given by the sheriff of Marion County as attested to by a certificate of publication, attached hereto and made a part hereof and marked Exhibit A.

'2. That defendants, Jerry Schill and Mary Schill obtained a valid court order, under proceedings supplementary in the Marion Municipal Court Room No. 2, on July 18th, 1966, directing the Sheriff of Marion County to sell the real estate in controversy herein. That such order was under proceedings supplemental, and the resulting sheriff's sale was a sale under such theory and not under the doctrine of...