Smith v. Wells Manfg. Co.
| Decision Date | 10 March 1896 |
| Docket Number | 17,723 |
| Citation | 43 N.E. 131,144 Ind. 266 |
| Parties | Smith, Trustee, v. Wells Manfg. Company et al. and Smith, Trustee, v. Findlay Window Glass Co. et al |
| Court | Indiana Supreme Court |
From the Hancock Circuit Court.
Appeal dismissed.
Hawkins & Smith and O. B. Jameson, for appellant.
R. A Black, J. N. Doty and Black & Pugh, for appellees.
Horace E. Smith, as trustee for a certain class of the creditors called the merchandise creditors of the Wells Manufacturing Company, an Indiana corporation, brought suit in said circuit court against said company and Henry Snow, its receiver, with leave of court, and the Findlay Window Glass Company, an Ohio corporation, to foreclose a mortgage on the entire property of said corporation, executed by said Wells Manufacturing Company to said trustee for the benefit of the class of creditors mentioned.
The Findlay Window Glass Company was made a defendant because it claimed to have a mortgage on the same property, executed by the same mortgagor to secure an alleged indebtedness from said Wells company to said Findlay company. About the same time the said Findlay company brought suit in the same court against said Wells Manufacturing Company to foreclose a mortgage executed, as alleged, by said Wells company prior to the alleged execution of the first mortgage mentioned. The whole property of the Wells company had been sold and converted into cash by its receiver and was in his hands, amounting to $ 4,370.56. Both plaintiffs were seeking to fasten a lien on the fund in the hands of the receiver through a foreclosure of the mortgage of each, and each claiming that the mortgage of the other was invalid or inferior to the lien of the mortgage set up in the complaint of each.
Issues were formed at great length on the complaint, answers and cross-complaint in the first case, and by agreement in the trial court the two cases were consolidated, with a further agreement that all evidence should be admissible under an answer of general denial, which was pleaded in the second, that was admissible under the pleadings in the first.
A trial of the consolidated case by the court without a jury resulted in a special finding, on which the court stated conclusions of law that both mortgages were invalid and of no effect and that the trustee, Smith, was entitled to recover of the Wells company, $ 11,581.07, and that the Findlay company was entitled to recover of the Wells company $ 12,349.50, and that each of the plaintiffs should pay half of the costs.
Judgment was rendered on the finding pursuant to the conclusions of law, directing each judgment to be paid out of the assets in the hands of the receiver pro rata, and without any preference or priority between them and other creditors, if any.
The errors assigned are very lengthy, but all are abandoned in the briefs except those relating to the conclusion of law that both mortgages were invalid and of no effect. Each of the plaintiffs severally excepted to each of the conclusions of law.
In their argument here, they each assail that part of the one conclusion of law that holds such party's mortgage invalid, and they each, at great length and with earnestness insist that that part of the conclusion holding the mortgage of the other invalid was correct. It, therefore, appears that they were both precisely alike dissatisfied with the judgment which was against each of them precisely alike.
But Smith, trustee, alone appeals and makes the Findlay company an appellee along with the Wells company and its receiver, Snow.
The only difference between the error assigned by Smith, trustee, and that by the Findlay company, and not abandoned by each, is that Smith assigned error as appellant, and the Findlay company assigns as appellee, and by what its counsel is pleased to call cross-error, the conclusions of law and each of them. The assignments of error as to the conclusions of law of appellant and the supposed appellee, the Findlay company, are exactly alike.
It therefore appears that the Findlay company was just as proper and necessary an appellant in this appeal as Smith, trustee and according to the repeated decisions of this...
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