Seaney v. Ayres, 29470

• Decision Date: 19 June 1958
• Docket Number: No. 29470,29470
• Citation: 238 Ind. 493,151 N.E.2d 295
• Parties: 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.
• Court: Indiana Supreme Court

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.

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 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.

Appellant cites Guthrie v. Blakely, 1955, 234 Ind. 167, 125 N.E.2d 437, and Gross Income Tax Division v. National Bank & Trust Co., 1948, 226 Ind. 293, 79 N.E.2d 651, in support of its contention that this case is one in which the judgment disposed of a distinct and definite branch of the litigation. However, an examination of the facts of those cases indicates they are not comparable to the case at bar. ²

The Guthrie case, supra, was a suit to quiet title to which defendants filed several paragraphs of answer. Plaintiff filed reply to the answers and defendant demurred to the reply, which demurrer was sustained. On plaintiff's refusal to plead further, it was ordered and adjudged that plaintiff take nothing by her complaint, and that defendants recover their costs. The court properly held this was a final judgment from which an appeal could be taken although no separate issue was made as to a temporary injunction asked for in the complaint. The court observed that a judgment may be final and appealable even if it does not dispose of all the issues, provided it disposes of a distinct and definite branch of the litigation.

In the Gross Income case, supra, 226 Ind. 293, 296, 79 N.E.2d 651, 652, the court held in an action brought in two paragraphs which were two distinct causes of action, and in which a demurrer was sustained to one paragraph and judgment rendered on plaintiff's refusal to plead over, there was an appealable final judgment although the other paragraph was pending in the court below. The court quoted from Home Electric Light & Power Co. v. Globe Tissue Paper Co., 1895, 145 Ind. 174, 175, 44 N.E. 191, as follows:

"A final judgment is one which determines the rights of the parties in the suit, or a distinct and definite branch of it, and reserves no further question or direction...