Seaney v. Ayres, 29470

• Citation: 238 Ind. 493, 151 N.E.2d 295
• Case Date: June 19, 1958
• Court: Supreme Court of Indiana

Page 295

151 N.E.2d 295 238 Ind. 493 Owen N. SEANEY, Executor of the Last Will and Testament and
Estate of Arthur B. Ayres, Deceased, Appellant,
v.
Matilda B. AYRES, George E. Goodwin, and Summit Gas and
Water Company, Inc., Appellees. No. 29470. Supreme Court of Indiana. June 19, 1958.
Rehearing Denied Sept. 30, 1958.

[238 Ind. 494]

Page 296

Paul R. Benson, New Castle, Alan H. Lobley, R. Stanley Lawton, Indianapolis, of Ross, McCord, Ice & Miller, Indianapolis, of counsel, for appellant.

Robert D. Armstrong, Arthur L. Gilliom, Elbert R. Gilliom, and Richard L. Gilliom, of Gilliom, Armstrong & Gilliom, Indianapolis, for appellee.

LANDIS, Judge.

Appellant as executor of the estate of Arthur B. Ayres, deceased, filed in the Probate Court of Marion County a pleading entitled 'Petition for Judgment Against Claimants' in which appellant sought summary relief for appellees' alleged contempt of court. Appellees in such petition were charged with interfering with the administration of said estate by conspiring to reduce its assets for appellees' benefit by filing a fictitious lawsuit against Eastern Indiana Gas Company and procuring the appointment of a receiver of said gas company, which was a corporation in which the estate owned stock. In the prayer for relief of the above 'Petition for Judgment Against Claimants' appellant asked that appellees be directed to appear and show cause why judgment should not be entered against them for $21,033.16 ($10,516.58 actual damages and $10,516.58 punitive damages), plus reasonable fees for appellant and his attorneys.

The court below issued the rule to show cause against appellants, reciting the same showed prima facie liability to said estate by appellees and directing them to show cause why they should not pay appellant $21,033.16[238 Ind. 495] and attorneys' fees. Thereafter, the court on appellees' motion, set aside and vacated the order to show cause and ordered appellant's petition transferred to the civil docket of the probate court and docketed separately as a complaint in a civil cause. Appellant sought to set aside and vacate this last order of the court and to file an amended petition. The court refused to set aside its last order and to allow appellant to file an amended petition.

Appellant has appealed from such ruling to this court.

Appellee has filed motion to dismiss the appeal taken by appellant, contending the ruling of the court below (1) was not an interlocutory order from which an appeal could be taken and (2) was not an appealable final judgment.

Appellant has conceded that the ruling of the court below was not an interlocutory order from which an appeal can be taken, ¹ and we shall not, therefore, belabor this opinion with a discussion of that point.

As to whether the ruling is an appealable final judgment, appellees contend the judgment below must finally dispose of and adjudicate appellant's cause of action or at least a distinct or definite branch thereof (citing: Enmeier v. Blaize, 1932, 203 Ind. 303, 179 N.E. 783, and Greathouse v. McKinney, 1942, 220 Ind. 462, 44 N.E.2d 344), which appellees state it does not do. Appellant contends the net effect of the ruling was to terminate between the parties all the issues of the case made out by the petition seeking relief in civil contempt.

[238 Ind. 496] Appellant cites Guthrie v. Blakely, 1955,...