State ex rel. Tuell v. Shelby Circuit Court of Shelby County

• Decision Date: 14 November 1939
• Docket Number: 27256.
• Citation: 23 N.E.2d 425,216 Ind. 231
• Parties: STATE ex rel. TUELL v. SHELBY CIRCUIT COURT OF SHELBY COUNTY et al.
• Court: Indiana Supreme Court

23 N.E.2d 425

216 Ind. 231

STATE ex rel. TUELL v. SHELBY CIRCUIT COURT OF SHELBY COUNTY et al.

No. 27256.

Supreme Court of Indiana

November 14, 1939

Royse & Travis, of Indianapolis, for relator.

Frank B. Ross, of Indianapolis, and Oscar Williams, of Shelbyville for respondent.

ROLL Judge.

This is an original action for a writ of prohibition. The petition response, and a reply were filed. From these verified pleadings, it appears that Ray S. Tuell died a resident of Marion County on July 9 1938, leaving as his sole heir at law a daughter, Norma M. Tuell, nine years old. Helen G. Tuell, the mother, was appointed guardian of Norma M. Tuell on July 12, 1938, and Lowell G. Ash was appointed administrator of the estate of Ray S. Tuell on July 11, 1938 by the Marion Probate Court. After he qualified as such administrator, he, in proper time, filed an inventory and appraisement of the property belonging to the estate of Ray S. Tuell, a copy of the same is attached to and made a part of the petition herein. It appears that Ray S. Tuell, in his life time, was engaged in the business of selling gasoline and petroleum products, both at wholesale and retail, and operated retail service stations and bulk stations located in different cities in Indiana and Ohio.

Among other property listed and appraised and set out in the inventory in the Marion Probate Court by Lowell G. Ash, as administrator of the estate Ray S. Tuell, deceased, appear, under the heading 'Exhibits H-I-J and K,' a description of all the property which is the subject of controversy. Under the various exhibits is listed the service station building, the equipment installed in said building, a ware house, and stock of merchandise on hand, and various other property, all of which property listed was located at Shelbyville, Indiana, and was the only property listed as located in Shelby County. It also appears that Lowell G. Ash was, prior to the death of Ray S. Tuell, in charge of, and operated the same after he was appointed administrator of said estate.

The record shows that on several occasions between July 11, 1938, the date of his appointment as administrator, and August 25, 1938, the said Lowell G. Ash, as such administrator, filed petitions in the Marion Probate Court, asking authority to continue the operation of said business, and instructions concerning the conduct thereof which the Court granted.

On August 25, 1938, relator herein, as guardian of Norma M. Tuell, filed her petition for the removal of Lowell G. Ash as administrator; the hearing on said petition was set for September 26, 1938. On that date Lowell G. Ash tendered his resignation as such administrator which was accepted, and on the same day Helen G. Tuell was appointed administratrix de bonis non of said estate of Ray S. Tuell, deceased.

Thereafter, on or about October 5, 1938, Lowell G. Ash filed in the Shelby County Circuit Court his affidavit of surviving partnership, wherein he alleged that he and the said Ray S. Tuell were partners in the ownership and operation of the business located in Shelbyville, and asked for an order to continue the operation of said business by him as such surviving partner that he might wind up said partnership business under the provisions of the statutes governing such matters. An inventory and appraisement of said alleged partnership property was filed by the said Ash, and it appears that the property so listed is the same property listed and appraised in the inventory filed by Lowell G. Ash as administrator, and filed in the Marion Probate Court. On October 6, 1938, James A. Emmert, Judge of the Shelby Circuit Court, approved the continuation of the business of said partnership. Thereafter, said Ash took possession of, and assumed control over all of said property, and continued to operate said business as partnership. The above mentioned proceedings, had in the Shelby Circuit Court, were without notice to the relatrix herein. On May 31, 1939, the relatrix herein served upon the said Ash a written demand for possession of the Shelbyville service station and all personal property held by him and belonging to the estate of Ray S. Tuell, deceased. This demand was refused. On June 29, 1939, the said Ash filed in the Shelby Circuit Court his complaint for a restraining order and injunction against the relatrix herein, and said Court issued a restraining order without notice, restraining relatrix, individually, and as administrix and as guardian from taking any action against Lowell G. Ash as surviving partner, or as an individual, or in any manner interfering with said surviving partnership or the business thereof, or the property belonging thereto until July 17, 1939, at which time a hearing was to be had on the temporary injunction.

At this point in the proceedings, relatrix filed her complaint herein for this writ of prohibition. A temporary writ was issued by this Court on June 12, 1939.

It does not appear that the relatrix herein appeared in the Shelby County Circuit Court in the injunction suit, or filed any answer therein, or in any manner brought to the attention of said Court the fact that the property here in question had been inventoried by Mr. Ash when he was acting administrator of the Tuell estate, and at that time had actual possession of the property as such administrator,...