Sullivan State Bank v. First National Bank
| Decision Date | 29 January 1925 |
| Docket Number | 11,914 |
| Citation | 146 N.E. 403,82 Ind.App. 419 |
| Parties | SULLIVAN STATE BANK ET AL. v. FIRST NATIONAL BANK ET AL |
| Court | Indiana Appellate Court |
From Gibson Circuit Court; Marshall R. Tweedy, Special Judge.
Action by the First National Bank of Oakland City and others against the Sullivan State Bank and others. From a judgment for plaintiffs, the defendants appeal.
Reversed.
T Morton McDonald and Lindley & Bedwell, for appellants.
J. M Vandeveer, S. L. Vandeveer, Sanford Trippett, Baltzell & Baltzell and A. L. Gray, for appellees.
Complaint by the First National Bank of Oakland City, on a note signed by appellee Claude Thompson and for foreclosure of a mortgage on certain real estate in Gibson county, owned by said Thompson. Later a supplemental complaint was filed alleging that, since the commencement of the action, the clerk of the Greene Circuit Court had issued to the sheriff of Gibson county executions on certain judgments in favor of appellants rendered in the Green Circuit Court against Claude Thompson; that the sheriff sold the real estate to the Sullivan State Bank without having offered it for sale in parcels and asked that the sale be vacated and set aside.
Appellee, Cleveland Life Insurance Company, hereafter referred to as the insurance company, filed a cross-complaint asking judgment against Claude Thompson on account of a note, and for the foreclosure of a mortgage on the land described in plaintiff's mortgage. It being conceded by all parties that the lien of the mortgage of said insurance company is prior to the liens of all the other parties, no further statement in reference to it need be made.
The First National Bank of Huntingburg intervened and by leave filed a cross-complaint against appellants alleging that on November 19, 1922, it recovered two judgments in the Gibson Circuit Court against Claude Thompson and others; that appellants had filed transcripts of their judgments in the office of the clerk of Gibson Circuit Court but that such judgments had not been entered and repeated in the judgment docket of said circuit court in the name of and as a judgment against Claude Thompson. It also asked that said sheriff's sale be set aside and be held to be void and that its judgments be declared to be prior and superior to the judgments of appellants.
Eurah B. Thompson filed a cross-complaint admitting that she had joined her husband in executing the mortgages to the insurance company and to the Huntingburg bank and asked that the court, in case of a foreclosure, exhaust the two-thirds of the mortgaged real estate before her one-third interest therein as the wife of Claude Thompson be sold.
The facts were found specially and, in substance, are as follows: In June, 1918, Claude Thompson, being the owner of the real estate described in the complaint and consisting of one hundred forty acres, executed his note to the Intermediate Life Insurance Company for $ 4,000; that Claude Thompson and his wife Eurah B. executed a mortgage to said insurance company on the real estate described in the complaint; that this mortgage was recorded in June, 1918, and later, with the note secured thereby, was assigned to appellee insurance company and that the amount due and unpaid on this note was $ 4,674.93.
On April 28, 1921, Claude Thompson gave the First National Bank of Oakland City his note for $ 10,000, and, to secure the payment thereof, he and his wife gave a mortgage on the 140 acres hereinbefore mentioned, to said last named bank. The amount due and owing on this note is $ 11,792.
On September 15, 1920, appellant Sullivan State Bank and appellant Sullivan Trust Company each obtained a judgment in the Greene Circuit Court for the sum of $ 1,759.14 and $ 4,267.69 respectively, both of said judgments being against the Pocket Oil and Gas Company, Claude Thompson and three other persons. On January 12, 1921, a certified copy of each of said judgments was filed in the office of the clerk of the Gibson Circuit Court and copied in the Miscellaneous Order-Book and, on said last named day, an entry was made in the judgment docket of said last named court showing the rendition of each of said judgments in favor of each of the appellants against "Pocket Oil and Gas Company, Joel Bailey, Ernest Suefer, Wilber N. Erskine, Claude Thompson," and indicating when and where said judgments were rendered, the amount of each and that the transcript had been filed January 12, 1921. In the front of said judgment docket, the clerk on January 12, 1921, indexed said judgments under the letter "S" as follows: " and "Plaintiff Sullivan State Bank--Pocket Oil & Gas Co. Defendants."
After the execution of the mortgage to the First National Bank of Huntingburg, the clerk of the Gibson Circuit Court, in the index in the front of the judgment docket, on the page marked and indexed "T," made an entry as follows: Neither of said judgments was entered in said judgment docket nor indexed in any other manner than as heretofore indicated.
On August 2, 1922, the sheriff of Gibson county received from the clerk of the Greene Circuit Court an execution issued on each of said judgments, directing him to levy on the property of Claude Thompson, to satisfy said judgments.
On May 22, 1922, appellee Citizens Trust and Savings Bank obtained a judgment in the Gibson Circuit Court against Claude Thompson and another on which there was due and unpaid $ 37.63.
On November 13, 1922, appellee, First National Bank of Huntingburg, recovered two judgments in the Gibson Circuit Court, one being for $ 1,158.27, and $ 10.60 costs, the other being for $ 2,273.75, and $ 4.05 costs. The first of said judgments was against Claude Thompson and his wife Eurah B. Thompson, while the last one was against Claude and Eurah B. Thompson and William Struckman.
December 2, 1922, the sheriff gave due notice by advertising and posting that on December 23, 1922, he would sell said 140 acres of land to satisfy the said judgments of appellants against Claude Thompson, in accordance with the executions theretofore received from the clerk of the Greene Circuit Court. On December 23, the sheriff, pursuant to the said notice, offered said real estate for sale, by first offering the rents and profits for one, two, three, four, five, six and seven years and receiving no bid therefor, he thereupon offered the whole of said real estate for sale, and sold the same to appellants for $ 7,095.38. The land so sold consisted of three forty and one twenty-acre tracts. At the time of such sale, one forty-acre tract, with the improvements thereon, was worth $ 9,500. The twenty-acre tract, with improvements, was worth $ 4,700. Each of the other two forties was worth $ 5,000. It was found that the sale of one or more of said tracts separately would not have diminished the value or injured the parcels remaining unsold and that the sheriff, in the exercise of a sound discretion, should have offered the land for sale in separate parcels and should have sold no more than was necessary to satisfy the executions.
It was also found that the mortgage lien of the insurance company was prior to the liens of the other parties; that the mortgage lien of the First National Bank of Oakland City was prior to the liens of all parties other than the insurance company; that the judgment lien of the Citizens Trust and Savings Bank was prior to the liens of all parties except the two mortgage liens; that the judgment liens of the First National Bank of Huntingburg were next in priority; that the interest of Claude Thompson was not sufficient to satisfy the mortgage liens and that it was necessary to sell all of said real estate, including the interest of Eurah B. Thompson, and that all of said real estate should be sold.
Upon these facts, the court concluded as a matter of law: (1) That the Cleveland Life Insurance Company had a first and prior claim on the real estate; (2) that the First National Bank of Oakland City had a second lien; (3) that the Citizens Trust and Savings Bank had a third lien; (4) that the First National Bank of Huntingburg had a fourth lien; (5) that the Sullivan Bank and Sullivan Trust Company had a fifth lien; (6) that Eurah B. Thompson was entitled to one-third of the value of the real estate as against all creditors of her husband except the mortgage creditors and except as to judgments rendered against her; (7) that the sheriff's sale mentioned in the finding was void and should be set aside. The court also stated certain conclusions as to the amount due on each mortgage and that these mortgages should be foreclosed. The fourteenth and fifteenth conclusions were, that the certified copies of the judgments of the Sullivan bank and the Sullivan trust company were sufficient in form and substance to entitle them to be entered and recorded in the judgment docket of the Gibson Circuit Court for the purpose of acquiring a lien on the real estate owned by Claude Thompson.
Appellants separately excepted to each conclusion of law, filed separate motions for a venire de novo, and for a new trial.
The decisive questions presented by this appeal relate: (1) To the manner in which the clerk of the Gibson Circuit Court entered appellants' several judgments rendered in the Greene Circuit Court in the judgment docket when the transcripts were filed and entered in the order-book of the Gibson Circuit Court; (2) to the decree of the court vacating and setting aside the sheriff's sale on appellants' judgments; and (3) the conclusions of law to the effect that Eurah B. Thompson was entitled to a one-third of the real estate as to...
To continue reading
Request your trial