Seaney v. Ayres, 19663
| Decision Date | 01 May 1963 |
| Docket Number | No. 2,No. 19663,19663,2 |
| Parties | Owen N. SEANEY, Executor of the Last Will and Testament and Estate of Arthur B. Ayres, Appellant, v. Matilda B. AYRES, George E. Goodwin, Summit Gas & Water Company, Inc., Ellan A. Goodwin, Josephine McGee, Stewart A. Matlock, Dudley C. Griffith, and Susanne Matlock Gooding, Appellees. . Division |
| Court | Indiana Appellate Court |
R. Stanley Lawton, Alan H. Lobley, Indianapolis, Paul R. Benson, New Castle and Ross, McCord, Ice & Miller, Indianapolis, of counsel, for appellant.
Elbert R. Gilliom, Richard L. Gilliom, Indianapolis; Gilliom, Armstrong & Gilliom, Indianapolis, of counsel, for appellee.
The question submitted by this appeal is whether the trial court erred in sustaining the demurrer of the appellees, Matilda B. Ayres, George E. Goodwin, and Summit Gas & Water Company, Inc., to appellant's fourth amended complaint on the grounds that said complaint does not state facts sufficient to constitute a cause of action and that there is a defect of parties.
The complaint, in material and pertinent part, as exhibited in appellant's brief, alleges in substance:
That the decedent, the appellee, Matilda B. Ayres, and the appellees other than George E. Goodwin and Summit Gas & Water Company (hereinafter referred to as Summit), were the owners of the outstanding common capital stock of a corporation named The Eastern Indiana Gas Company (hereinafter referred to as Eastern); that the decedent owned 76.52 per cent of said stock, the appellee, Matilda B. Ayres, owned 21.2482 per cent of the stock, and the other said appellees, the remaining stock; that the appellee, Matilda, is the widow of the decedent, a claimant against decedent's estate, and that she was a director and the salaried president of said Eastern Corporation and, also, a director and president of the appellee, Summit Company; that Matilda and appellee, George E. Goodwin, on August 3, 1951 owned all the stock shares of Summit.
That on January 6, 1951, the stockholders of Eastern resolved to dissolve the corporation and prior to July 11, 1951, the Board of Directors of Eastern had settled its affairs, disposed of all its property, paid all the debts of the corporation and distributed 'the balance' to the stockholders; that on July 11, 1951 appellee, Matilda, as president, and appellee Josephine McGee, as secretary, made verified certificate of the accomplishment to the Secretary of State; and that $9029.96 was delivered to one Paul R. Benson 'in a fiduciary capacity' for the payment of the corporation federal income taxes.
That on August 3, 1951 said Matilda and said George E. Goodwin, 'in pursuance of a conspiracy theretofore consummated by' them caused a suit to be brought without probable cause by said Summit against Eastern maliciously founded upon a false allegation of indebtedness of Eastern to Summit and seeking the appointment of a receiver on the ground that Eastern had been dissolved; that service in said action and notice of application for a receiver was had upon said Matilda by and through a preconcerted arrangement with said George E. Goodwin and she failed and neglected to notify any former stockholder, officer, director or attorney of Eastern of the filing and pendency of said suit or of the application for a receiver and concealed the fact thereof; that she knowingly took no steps to see that the action was defended for the purpose of securing the appointment of a receiver; that on August 6, 1951, 'through the said conspiracy and collusion' of Matilda and Goodwin, the court, upon the 'fraudulent and false' evidence 'of said conspirators', was prevailed upon to apppoint a Receiver for Eastern; that no notice of the appointment of the Receiver was given to any person except Matilda until the time for appeal from said appointment had passed.
That thereafter appellant received notice of the action and appeared for Eastern and sought to defend in its name; that thereafter Matilda sought to defend on behalf of Eastern and filed her answer for the purpose of admitting liability of Eastern; that thereafter appellant moved to strike the appearance and answer of Matilda, which was done, and appellant was 'allowed' to defend in the name of Eastern; that on December 9, 1954 a judgment was rendered for Eastern and against Summit which was not appealed and is now final and the Receiver was discharged on the ground that Eastern was not indebted to Summit.
That 'thereafter' Matilda made demand upon the 'Receiver' for her share of the monies 'in the hands of the Receiver' but the balance of the funds in the Receiver's hands was delivered to said Paul R. Benson 'in his aforesaid fiduciary capacity' and the Receiver was discharged; that out of the funds held by said Paul R. Benson for the payment of said federal taxes, certain designated sums were paid for the receiver's bond, fees, attorney fees and costs; that such payments were occasioned solely by the 'collusive' appointment of said Receiver.
That Matilda, Goodwin and Summit are each claimants against the appellant estate and each wrongfully and illegally desire a larger portion of the assets of the estate that comes to them by rightful operation of the law and they conspired together to devise a fraudulent scheme as a consequence of which the conspirators attempted to procure a larger portion of the estate assets than was their just and lawful due.
That in the said defense of said 'malicious litigation' the appellant estate incurred and expended reasonable costs and expenses of $10,000.00. The prayer of the complaint is for $13,526.58 'compensatory' damages and $50,000.00 'punitive' damages.
Appraising the complaint as a whole by express allegations and by intendment, it seems that it sought to declare upon the theory that Matilda, decedent's widow, and said George E. Goodwin, who were claimants against the decedent's estate, desired to procure from the assets of the estate a larger amount than was due them on their claims and, to accomplish this purpose, they contrived to establish a groundless or fraudulent claim by the Summit corporation, all the stock of which was owned by them, against the Eastern and satisfy a major portion of the judgment obtained thereby out of the corporate assets of the Eastern distributed to the estate by reason of the decedent's ownership of 76.52 per cent of the stock thereof, upon the dissolution of Eastern; that to protect the assets of the estate and thwart the said fraudulent scheme, the appellant, as executor of the will of the decedent, after a receiver of the Eastern had been duly appointed by the court, and by reason of Matilda's answer admitting the liability of Eastern on the claim of Summit, appeared in the action and took the steps and proceedings alleged, resulting in a judgment for Eastern and against the Summit on the claim sued upon and the discharge of the Receiver; that in defense of the malicious litigation the estate incurred and expended reasonable expenses and costs in the amount of $10,000.00. Unless otherwise stated the use of the word 'appellees' refers to appellees, Matilda B. Ayres, George E. Goodwin and Summit Gas & Water Company, Inc.
Basically, the varying contentions of the parties, as exemplified in their respective briefs, are wound around the determination of whether the allegations of the amended complaint sufficiently state the dissolution of the Eastern corporation. Appellees, Matilda, Goodwin and Summit propose that if the amended complaint does not show a dissolution of said corporation, then (1) any claim for damage occasioned by the action against the Eastern would reside in it, not appellant; (2) there would be a defect of parties in that the Eastern was neither plaintiff nor defendant in the present action; (3) appellant would have been required to make a demand on Eastern or show that such demand would have been useless before appellant could legally bring and maintain this action as a stockholder; (4) that appellant would have to bring and maintain this action for and on behalf of and for the benefit of said Eastern corporation.
There appears no motion by appellees to make the amended complaint more specific. Therefore, on demurrer, in the absence of such motion, all intendments are taken in favor of the pleading and all facts, well pleaded, are deemed to be true and the conclusions of fact stated therein are considered and held to be an averment of all the facts requisite to sustain such conclusions insofar as essential to the sufficiency thereof. Budd v. Board of County Com'rs of St. Joseph County (1939), 216 Ind. 35, 40, 22 N.E.2d 973; State ex rel. Dept. of Financial Institutions v. Kaufman (1941), 218 Ind. 74, 77, 30 N.E.2d 978; Regester v. Lincoln Oil Refining Company et al. (1933), 95 Ind.App. 425, 429, 183 N.E. 693; Teeter et al. v. Municipal City of LaPorte et al. (1956), 236 Ind. 146, 147, 148, 139 N.E.2d 158. The demurrer to the complaint admits as true any facts which can be reasonably or necessarily inferred from the well pleaded facts therein and such reasonable inferences will be considered in aid of the complaint. Rochester Bridge Co. v. McNeill (1919), 188 Ind. 432, 439, 122 N.E. 662; Goshen Milling Co. v. Bailey (1917), 186 Ind. 377, 382, 114 N.E. 869; Walker, et al. v. Ellis (1955), 126 Ind.App. 353, 358, 129 N.E.2d 65; Hurd, etc. v. Ball et al. (1957), 128 Ind.App. 278, 289, 143 N.E.2d 458; Ebbeskotte v. Tyler (1957), 127 Ind.App. 433, 142 N.E.2d 905; 23 I.L.E. Pleading, § 108, page 352.
Appellees urge that 'the question of whether or not the fourth amended complaint shows that Eastern * * * was dissolved requires consideration of the conditions precedent to dissolution that are prescribed in the dissolution sections of the Manufacturing and Mining Act (Secs. 5529-5532, Burns' A.I.S. 1926) and, in the light thereof, of the relevant allegations contained in the amended...
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