Stair v. Meissel
| Decision Date | 03 January 1935 |
| Docket Number | 14,728 |
| Citation | 193 N.E. 398,99 Ind.App. 495 |
| Parties | STAIR v. MEISSEL |
| Court | Indiana Appellate Court |
From Warrick Circuit Court; Union W. Youngblood, Judge.
Action by Ernst Meissel against Clem Stair on promissory notes and to foreclose a chattel mortgage, and for a receiver. From a judgment for plaintiff, defendant appealed.
Affirmed.
Frank C. Dailey, and William C. Welborn, for appellant.
Edmund L. Craig, and William L. Mitchell, for appellee.
This action was commenced in the superior court of Vanderburgh county, Indiana, on the 30th day of July, 1931. The complaint alleged that on September 1, 1926, the defendant (appellant) executed and delivered to the plaintiff (appellee) 65 promissory notes each for $ 750.00 and providing for interest and attorneys' fees thereon, secured by a chattel mortgage on certain personal property described in said mortgage; that 51 of said notes had been paid, leaving 14 notes which were due and unpaid, for which a judgment was sought. The complaint also contained allegations for the appointment of a receiver without notice and for the foreclosure of said mortgage and that after notice the receivership should be made to continue "pending the termination of this action; that the receiver be given the powers incident to receivers under the laws of the State of Indiana and be authorized and directed to immediately take charge of said property and to deal therewith under the order and directions of the court."
Upon the filing of the complaint and the issuing of summons thereon on the 30th day of July, 1931, the court appointed a receiver of the goods and chattels of the defendant covered by the mortgage, "pending the hearing as herein fixed, as to the continuance of the receivership created hereby, without notice," and the said appointment was made permanent pending the litigation after hearing on the response to the rule to show cause, on the 13th day of August, 1931. In the meantime, on the 11th day of August, 1931, the defendant, appellant herein, filed his answer in general denial to plaintiff's complaint, and thereupon filed his motion and affidavit for change of venue from the county. Ruling on the defendant's motion for change of venue from the county was suspended by the court until the 14th day of August, 1931, after the hearing held on the receivership application, and thereupon, on the 14th day of August, 1931, the court sustained the motion of the appellant for change of venue from the county of Vanderburgh "as to the main cause of action herein," and overruled the same as to the receivership. Incidentally it may be mentioned that an appeal was taken by the appellant in the instant case from the orders of the court in said receivership matter, assigning as one of the alleged errors the ruling of the court denying a change of venue from the county therein. The appeal went to the Supreme Court and was decided adversely to the appellant. See Stair v Meissel (1934), 207 Ind. 280, 192 N.E. 453.
On the 27th day of November, 1931, the appellant filed his verified petition in the Warrick circuit court, to which court the venue of the main cause of action had been changed for an order to stay proceedings in the cause "pending the transfer on change of venue of the entire cause, to Warrick County, Indiana, and pending the determination of the Supreme Court of Indiana of the rightfulness of the order of appointment of the receiver herein."
On the 28th day of November, 1931, the court overruled the verified petition to stay proceedings, to which ruling of the court the appellant at the time excepted. On the 30th day of November, 1931, the appellant filed his motion and affidavit for a continuance of the cause in the Warrick circuit court which was overruled, to which ruling of the court the appellant at the time excepted.
After the court overruled appellant's said motions for a stay of proceedings and for a continuance, trial was had before the court without the intervention of a jury, resulting in a judgment and decree against the appellant in the amount of Fourteen Thousand Five Hundred Dollars and 37/100 and for a foreclosure of said mortgage. The property covered by the mortgage or so much thereof as was necessary was ordered sold to satisfy the judgment. The decree also covered the contingency of a deficit after the sale price was added to the net amount of money in the receivership and to the contingency of an excess.
The appellant seasonably filed a motion for a new trial which was overruled with an exception. This appeal followed. The only questions raised arise out of the ruling on the motion for a new trial. The causes or grounds of the motion argued and relied upon for reversal are that the decision of the court is contrary to law; is not sustained by sufficient evidence; error in the rulings of the court on the motion for a stay of proceedings and for a continuance in the Warrick circuit court; that the Warrick circuit court had no jurisdiction for the reason that the property was held in custodia legis in the superior court of Vanderburgh county and that the Warrick circuit court had no jurisdiction to order the said property sold by the sheriff of that county by reason of the fact that it was held in custodia legis by the superior court of Vanderburgh county by its receiver.
The appellant himself, by his motion and affidavit for a change of venue from the county, brought about the ruling of the court which separated the receivership proceeding from the...
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