Slusser v. Romine

Citation200 N.E. 731,102 Ind.App. 25
Decision Date31 March 1936
Docket Number15,079
PartiesSLUSSER ET AL v. ROMINE
CourtCourt of Appeals of Indiana

1. APPEAL---Briefs---Points and Authorities---Waiver of Error.---Errors not discussed under propositions, points and authorities in appellant's brief are waived. p. 28.

2. JUDGMENT---On Trial of Issues---Time for Rendition---Delay on Matter Under Advisement.---Where defendant filed motion for judgment at close of plaintiff's case and matter was continued for argument and briefs, a subsequent motion to withdraw the issues from the judge on the ground the decision on the motion was held under advisement for more than 90 days (2--2102, Burns 1933) was not well taken since the original motion was not submitted until hearing was had and briefs filed, which was after the latter motion was filed. p. 28.

3. ASSOCIATIONS---Actions By and Against---Process---Faulty as to Some Co-defendants---Effect of Stipulation Against Personal Judgment.---In action against members of an association on a joint obligation, where those served with process defended and stipulated that any judgment against them would be rendered in their representative capacity only the fact that certain other co-defendants were not properly served did not invalidate the judgment, which was enforceable only against the association property wherein all members were jointly interested. p. 29.

4. ASSOCIATIONS---Actions By and Against---Parties---Representatives for Members.---Although an unincorporated association could not be sued at common law by its name and all members were necessary parties, it was intended by 2--220, Burns 1933 (authorizing suits by and against one or more of numerous persons) to incorporate in the Code the equity rule of procedure which authorized suits by and against representatives of the members of an unincorporated association of a large number of persons. p 31.

5. JUDGMENT---On Trial of Issues---Failure to Adjudicate Issue---Effect.---In action against representatives of an unincorporated association for attorney fees and in attachment, failure to adjudicate issue presented in attachment held not to render decision contrary to law but judgment stood as though no attachment had been commenced. p 31.

6. ASSOCIATIONS---Actions By and Against---Evidence---Admissibility---Admission of Officers.---In action against members of an unincorporated association for attorney fees, where association's constitution vested its president with sole executive power it was not error to permit plaintiff to testify concerning conversations with such president as to plaintiff's employment. p. 32.

From St. Joseph Circuit Court; John W. Schindler, Special Judge.

Action by Otis S. Romine against Eugene B. Slusser and others, as members and representatives of the Order of Owls, an unincorporated voluntary association, for attorney fees. From a judgment for plaintiff, defendants appealed.

Affirmed.

Seebirt, Oare, Deahl & Omacht, Walter R. Arnold and John W. Talbot, for appellants.

Parker, Grabill, Crumpacker & May, George A. Crane and Otis Romine, for appellee.

WIECKING J. Curtis, C. J., not participating.

OPINION

WIECKING, J.--

This was an action for attorney's fees by the appellee against appellants as the representatives of and representing the members of the Order of Owls, an unincorporated association. The complaint alleged the employment of the appellee in January, 1929, at a time when the Home Nest of the Order was not in session, by Ferdinand D'Esopo, John D. Burke, and Eugene B. Slusser to carry on certain litigation on behalf of the Order of Owls; that the named parties for and on behalf of the Order agreed to pay the appellee the reasonable value of such services; that the appellee undertook such employment, rendered the services which were accepted by the parties for the Order; and that the Order received the benefit of the services which were of the value of $ 7,500. The complaint further alleged that D'Esopo was the Supreme President of the Order of Owls; that he lived in Hartford, Connecticut; that the sole executive power of the Order was in the Supreme President when the Home Nest was not in session; that the defendants named are all of the members of the governing body called the "Home Nest" and are members of and represent all of the members of the Order of Owls; and that the said Order has subordinate nests in various cities in the United States and aggregates thousands of persons too numerous to be brought before the court. Summons was issued as to all the defendants except D'Esopo and Mary C. Ohnesorge. The appellee filed an affidavit for attachment in which he set out that those parties were non-residents. An order of attachment against the appellants D'Esopo and Ohnesorge was issued to the sheriff who levied upon certain real estate belonging to the Order of Owls in St. Joseph County. The appellants, other than D'Esopo and Burke, appeared by counsel and filed their answer in general denial and the appellant Slusser filed an additional paragraph of answer alleging payment. The appellant D'Esopo was defaulted on the non-resident notice published as to him. The appellants Talbot and Slusser filed a request for a special finding of facts and conclusions of law. The cause was submitted to the court without the intervention of a jury. At the close of the plaintiff's evidence, the appellants Talbot and Ohnesorge filed a motion for judgment. The defendants the next morning called one witness after which the court heard argument on the appellant's motion for judgment. The court then continued the matter for briefs and authorities to July 7, 1930. No further action was taken until October 3, 1930, when John W. Talbot filed a verified motion to release jurisdiction under Section 603, Burns' Revised Statutes 1926 (Section 2-2102, Burns' Indiana Statutes Annotated 1933). On February 13, 1931, the appellee filed a motion to set for hearing the appellants' motion for judgment. Hearing was had on September 5, 1931, and continued. On September 23rd, the appellants called the court's attention to their motion to withdraw the issues from the special judge. On May 24, 1932, the court resumed hearing on both motions and ordered a transcript of the evidence. On January 6, 1933, the court filed special finding of facts and stated conclusions of law thereon, and rendered judgment accordingly. On January 9, 1933, the appellants Slusser, Talbot, and Talbot filed a motion for new trial which was overruled and an appeal prayed and granted to this court. The assignment of error here is (1) that the trial court erred in proceeding to a determination in the cause after the filing of the motion to withdraw the issues; and (2) the court erred in overruling appellants' motion for new trial. Under their propositions, points and authorities, the appellants' discuss (1) the first cause for new trial which in legal effect is the same as the first assignment of error; (2) the decision of the court is contrary to law; (3) that the decision of the court is not sustained by sufficient evidence; and (4) that the court erred in admitting in evidence certain conversations between appellee and D'Esopo, Slusser, and Burke without a precedent showing of any authority on the part of such persons to bind the Order of Owls. By a failure to discuss the other specifications of its motion for new trial under their propositions, points and authorities, appellants have waived the same.

The first assignment of error and the first specification of the motion for new trial may be considered together since each is to the effect that the court had no jurisdiction or authority to enter any finding or judgment in this cause by reason of the appellants' motion to withdraw the issues under Section 2-2102, Burns' Indiana Statutes Annotated 1933.

In this case the motion for judgment was filed by the appellants at the close of the appellee's evidence; thereafter, one witness was called on behalf of the appellants. The motion was continued by the court for briefs and arguments. The record does not disclose that the matter was ever submitted to the court until at least May 24, 1932, which was the last day he heard argument of c...

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