State ex rel. Surprise v. Porter Circuit Court

• Decision Date: 25 June 1948
• Docket Number: 28407.
• Citation: 80 N.E.2d 107,226 Ind. 375
• Parties: STATE ex rel. SURPRISE et al. v. PORTER CIRCUIT COURT et al.
• Court: Indiana Supreme Court

80 N.E.2d 107

226 Ind. 375

STATE ex rel. SURPRISE et al. v. PORTER CIRCUIT COURT et al.

No. 28407.

Supreme Court of Indiana

June 25, 1948

Albert H. Gavit, of Gary, for relators.

Owen W. Crumpacker, of Hammond, and Edward J. Ryan, of Valpariso for respondents.

EMMERT Justice.

The issues involved in this original action for a writ of prohibition present a question as to an alleged conflict of jurisdiction of the Porter Circuit Court with the Lake Superior Court, Room 5, in its cause No. 54070. On June 12 1947, Jay E. Darlington as a resident taxpayer of the city of Hammond for and on behalf of himself and all taxpayers of said city, filed an amended complaint in the Lake Superior Court, Room 1, against the city of Hammond certain of its then officials and judgment creditors in 58 causes, specifying each by number, to declare said judgments rendered in said court void, and to enjoin their enforcement and payment. Two days later the same plaintiff commenced another action in the Lake Superior Court, Room No. 5 against the city of Hammond, certain of its then officials and judgment creditors in 43 causes in Lake Superior Court, Room No. 5, for similar relief. The venue in each cause was later changed to the Porter Circuit Court, where they were consolidated for trial.

On June 30, 1947 the plaintiff filed a second paragraph of complaint against all defendants and certain additional parties made defendants in the same cause that had been originally filed in the Lake Superior Court, Room 5, No. 60850. Charles L. Surprise, Trustee, was made an additional party defendant therein, and the second paragraph of complaint contained the following allegation:

'(q) The last three of the above named defendants, C. Ballard Harrison, Trustee, Warren A. Redder, Jr., Trustee, and Charles L. Surprise, Trustee, are trustees of certain real estate, bonds or money in a number of the same causes in which said money judgments against the city were obtained. Plaintiff says, upon information and belief arising from the records and files in said causes: Said trustees have purported, and still purport, to hold, sell and disburse the proceeds of, certain real estate which is covered by the same special assessment rolls and the same bonds and coupons which are the basis of said purported money judgments against said city. Their appointment was procured by some of said same judgment creditors and said trustees have disbursed certain of their trust funds to said judgment creditors. Further, in certain of said cases, said trustees purport to act also for said city and to hold or disburse funds for it, as one of their beneficiaries. Those trusteeships, and said property or money which is in their hands or which they have disbursed as trustees, constitute in part the property or election of remedies referred to in rhetorical paragraph (p) above, as constituting a satisfaction or election of remedies which destroyed the alleged causes of action for said money judgments against the city and which rendered said judgments illegal and void. Said trustees have accordingly been made defendants herein to answer and disclose as to said matters and all matters involved in this action.' (Italics supplied.)

On the same day the plaintiff also filed a second paragraph of complaint in the Porter Circuit Court in the same cause originally filed in the Lake Superior Court, Room 1, No. 60825, against all defendants and certain additional party defendants, among whom was Charles L. Surprise, Trustee. The allegations concerning Charles L. Surprise were substantially the same as pleaded in cause originally numbered 60850 in the Lake Superior Court, Room 5.

On November 21, 1947, before the conclusion of the trial on the complaints to set aside the judgments against the city of Hammond, Jay E. Darlington, as plaintiff, filed a verified petition, which, among other things, alleged the following facts:

'1. There are involved in this action the following special assessments rolls of the City of Hammond in which alleged money judgments were rendered against the City of Hammond in the following cause numbers and amounts:

Roll Cause Amount

---- ----- ------

1497 53779 $19,974.56

1534 53781 18,087.91 Defendant Carl A. Huebner has confessed in open court during the trial of this cause that he committed a gross fraud upon the City of Hammond, its taxpayers, and upon Lake Superior Court in obtaining said money judgments. The trial is still in progress and the court has not yet adjudged the issues.

'2. The above designated assessment rolls cover Buena Vista Addition to the City of Hammond. A fund of money has arisen from these assessment rolls and is now in hands of defendant Charles L. Surprise, as Trustee, by virtue of a foreclosure of these assessment rolls against the real estate in said Buena Vista Addition in Cause No. 54070, Lake Superior Court, Room No. 5 at Hammond. This fund arises from the same rolls above designated, from which the above money judgments arose. The fund arose from the same special assessments which are the subject matter of the above designated judgments. The fund is purportedly for the benefit of the same special assessment bondholders who are defendants in this action, and who are the purported beneficiaries of the above designated fraudulent judgments. Said defendant Carl A. Huebner, who has confessed to obtaining the above money judgments against the City of Hammond and its taxpayers by fraud, is the same attorney who purportedly represented the same bondholders in foreclosing these same assessment rolls, and he still purports to represent them in the attempted disposal of the fund hereinafter complained of. * * *

'4. Accordingly, said funds and the rights of the City of Hammond and its taxpayers with respect thereto are part of the subject matter of this action upon which trial is in progress. Said defendants are attempting to, and will, unless restrained, misappropriate many thousand dollars of said fund to their own use, thereby ousting this Court's jurisdiction over the fund and prejudicing the rights of the parties in the subject matter of this action during this trial, by the following series of acts: * * *'

On November 21, 1947 the Porter Circuit Court found that the court had jurisdiction over the persons of the defendants named in the verified petition for a restraining order and of the subject matter; 'that the fund hereinafter described is part of the subject matter of this action and of the pending trial herein; that the issuance of this order is necessary for its preservation and for the preservation of the jurisdiction of this Court from being ousted by the acts of the defendants...