Slusser v. Romine

Citation200 N.E. 731,102 Ind.App. 25
Decision Date31 March 1936
Docket NumberNo. 15079.,15079.
PartiesSLUSSER et al. v. ROMINE.
CourtCourt of Appeals of Indiana

OPINION TEXT STARTS HERE

Appeal from St. Joseph Circuit Court; John W. Schindler, Judge.

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

Affirmed.

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

Otis S. Romine (pro se), Geo. A. Crane, and S. J. Crumpacker, all of South Bend, for appellee.

WIECKING, Judge.

[1] 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, Conn.; 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 nonresidents. 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 nonresident 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 (Indiana) 1926 (section 2-2102, Burns' Indiana Statutes Annotated 1933, section 360, Baldwin's Ind. St. 1934). 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 23d, 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, section 360, Baldwin's Ind. St. 1934.

[2] 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 counsel on the motion. The motion filed by appellants on October 3, 1930, by appellant John W. Talbot, was not well taken as the record does not show that the motion had been submitted to the court and taken under advisement before that time. Conover v. Cooper (1924) 83 Ind.App. 675, 678 and 679, 145 N.E. 779.

[3] It appears from the record in this case that at the time of the filing of the complaint in this action summons was issued against John W. Talbot, John Harold Talbot, Eugene Slusser, and John D. Burke as residents of St. Joseph county, Ind., and that each was regularly served with summons in the action. At the same time the appellee filed an affidavit of nonresidence as to the appellants Ferdinand D'Esopo and Mary Ohnesorge; thereafter John W. Talbot, John Harold Talbot, Eugene Slusser, and Mary Ohnesorge appeared by counsel and made a defense to the action. Ferdinand D'Esopo was defaulted after proof of publication had been properly filed. John D. Burke did not appear and answer and no default was entered as to him. At the time of the trial a stipulation was entered into by all the parties represented that any judgment entered in the case should be against the appellants only in their representative capacity as members of the Home Nest of the...

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