Spinney v. Hall

• Citation: 97 N.E. 571,49 Ind.App. 502
• Decision Date: 23 February 1912
• Docket Number: 7,459
• Parties: SPINNEY ET AL. v. HALL ET AL
• Court: Court of Appeals of Indiana

97 N.E. 571

49 Ind.App. 502

SPINNEY ET AL. v. HALL ET AL

No. 7,459

Court of Appeals of Indiana

February 23, 1912

From Newton Circuit Court; James T. Saunderson, Special Judge.

Action by Edmon G. Hall and others, as receivers of the Goodland Bank, against Arthur J. Spinney and another. From a judgment for plaintiffs, defendants appeal.

Affirmed.

Hume L Sammons and E. B. Sellers, for appellants.

William Darroch and Edmon G. Hall, for appellees.

OPINION

MYERS, J.

On February 24, 1909, appellees Hall, Griggs and Wilds, as receivers of the Goodland Bank, commenced this action to enforce payment of two notes, payable to the order of Baldwin & Dague, and executed by Arthur J. Spinney and Charles Spinney, in the name of Spinney Brothers.

Appellants answered in three paragraphs. The first and third paragraphs were withdrawn, and the court sustained a demurrer to the second paragraph. Appellants refused to plead further, and judgment was rendered in favor of said receivers for the amount of the notes and attorneys' fees.

Appellants' assignments of errors question: (1) the complaint, on the ground that it does not state facts sufficient to constitute a cause of action; (2) the action of the court in sustaining a demurrer to the second paragraph of answer.

It is insisted that the complaint is insufficient for the following reasons: (1) For failing to allege that the court had jurisdiction to appoint said appellees as receivers; (2) that it does not show the court had jurisdiction of the subject-matter and of the persons of the parties to the action in which said receivers were appointed; (3) that it fails to allege the nature of said action; (4) that it does not state facts showing that the Newton Circuit Court had jurisdiction either to appoint receivers or to authorize such receivers to bring this action, or that Baldwin & Dague were insolvent, or had violated any law authorizing the appointment of a receiver or that said appellants were receivers for Baldwin &amp Dague, payees of the notes.

Any question as to the jurisdiction of the court to proceed and render judgment on the issues in another case cannot be made the basis for an effective objection on demurrer to the complaint in this case. It appears from the complaint that the Newton Circuit Court appointed appellees Hall, Griggs and Wilds receivers of the Goodland Bank. It was a court of general jurisdiction, and, in the absence of a showing to the contrary, we must indulge the presumption that the proceedings were regular; that said court had jurisdiction of the subject-matter and of the parties in interest. Roberts v. Leutzke (1907), 39 Ind.App. 577, 78 N.E. 635; American Mut. Life Ins. Co. v. Mason (1902), 159 Ind. 15, 64 N.E. 525; Runner v. Scott (1898), 150 Ind. 441, 50 N.E. 479; Boyer v. Robertson (1897), 149 Ind. 74, 48 N.E. 7; Davis v. Taylor (1895), 140 Ind. 439, 39 N.E. 551; Nichols v. State (1891), 127 Ind. 406, 26 N.E. 839. This presumption in favor of the order of the court appointing said receivers, and the fact that it further appears that they duly qualified and as such receivers commenced this action, were a sufficient showing that all the proceedings in that case leading up to their appointment were regular. We agree with appellants that the complaint should show that said receivers had authority from the court to bring this action, but it is not necessary for them to allege specific authority to bring this particular action, for if the order appointing them is broad enough to authorize them to prosecute actions of this character for the collection of the assets belonging to said bank, the complaint will be sufficient as against an objection on this ground. Taylor v. Canaday (1901), 155 Ind. 671, 57 N.E. 524.

It appears from the allegations of the complaint before us that this action was brought by the receivers in the court that appointed them; that the notes in suit were given to Baldwin & Dague, who were partners in the banking business in the town of Goodland under the name of Goodland Bank; that they were the sole owners of that bank, and the notes in suit were the property of it; that the notes were in the hands of said receivers as such; that they were duly authorized and empowered by the order of said court appointing them to sue in their own names upon any claims and demands due, or to become due and owing to said Goodland Bank; that said notes were a part of the assets of the bank, and were unpaid. Under these facts, and the general authority given to said receivers by the order of court, they were authorized to maintain this action.

The paragraph of answer in question is so long that we will give only a general outline of it. It shows that Charles Spinney was the duly elected, qualified and acting treasurer of Newton county from January 1, 1905, until January 1, 1909. From January 1, 1905, until about January 1, 1908, Daniel P Baldwin and William H. Dague, as partners, were continuously engaged in the banking business in the town of Goodland, under the firm name of the Goodland Bank; that when said Charles Spinney entered upon the duties of his said office, his predecessor in office turned over to him, as a part of the funds of said county, a deposit in said bank, where it remained until in February, 1905, when said Spinney proposed to withdraw it, but in consideration of his leaving it in said bank, and his continuing to be a depositor thereof, said Baldwin & Dague agreed to secure the repayment of said deposits by delivering to Spinney, as collateral security, the notes of divers persons, covering the amounts of such deposits, and which collaterals were to be surrendered by Spinney or increased by Baldwin & Dague as the deposits of such treasurer should vary in amount. Pursuant to this agreement, notes were placed with said Spinney to his satisfaction, and this arrangement continued until May or June, 1905. At that time Arthur J. Spinney and Charles Spinney were partners, engaged in carrying on a general store in the town of Goodland, and desired to borrow $ 1,200 from said bank. It was agreed between said bank and Charles Spinney that the bank would loan the firm of Spinney Brothers $ 1,200, without additional security, but the note evidencing such loan should be held by the bank, and the collateral held by said Charles Spinney as...