Smith v. Zumpfe

• Decision Date: 13 June 1940
• Docket Number: No. 27425.,27425.
• Citation: 217 Ind. 431,27 N.E.2d 878
• Parties: SMITH v. ZUMPFE et al.
• Court: Indiana Supreme Court

217 Ind. 431

27 N.E.2d 878

SMITH

v.ZUMPFE et al.

No. 27425.

Supreme Court of Indiana.

June 13, 1940.

Appeal from Probate Court, Marion County; Smiley N. Chambers, judge.

Suit between David T. Smith and William A. Zumpfe and others involving the sale of realty in a receivership proceeding. From an order for sale of realty, David T. Smith appealed, and the case was transferred from the Appellate Court under Section 4-217, Burns' Ann.St.1933. On motion to dismiss appeal.

Appeal dismissed.Fred Barrett and Bachelder & Bachelder, all of Indianapolis, for appellant.

Davis, Pantzer, Baltzell & Sparks, of Indianapolis, for appellees.

SHAKE, Judge.

This case comes before us on a motion to dismiss, and the question is whether the order sought to be reviewed is a final judgment or an interlocutory decree. If it is interlocutory the appeal was not taken in time.

The order was one for the sale of real estate entered in a receivership proceeding. It was recited therein, ‘that the Court expressly reserves jurisdiction to refuse for any reason to confirm any sale made pursuant to this order.’ An order for the sale of real estate in which the court reserves the right to refuse to confirm the sale is usually regarded as interlocutory, upon the theory that a final order is not entered in such a proceeding until the sale is confirmed by the court. This is the rule with respect to proceedings to sell real estate in the settlement of decedents' estates. In Staley v. Dorset, 1858, 11 Ind. 367, it was said: ‘The statute under which the proceedings were had, contemplates that the whole matter is under the control of the Court until the land is sold, a report of the sale made to the Court, and the sale confirmed, and perhaps until a deed is ordered to be made to the purchaser. Upon a report of the sale being made, the Court may confirm it or set it aside and order a re-sale. We are of opinion that the judgment appealed from was not final, within the meaning of the statute.’ We can perceive no sound reason why the same rule should not be applicable to an order of sale entered in a receivership proceeding where the sale is made contingent upon subsequent approval.

This is the second appeal growing out of this receivership, and the appellant says that in the former case we held, in effect, that an order of the character here involved was final and not interlocutory, and that said decision is therefore binding upon this court and the parties alike. The case...