Trusler v. Galambos, 29648

• Decision Date: 18 April 1958
• Docket Number: No. 29648,29648
• Citation: 238 Ind. 195,149 N.E.2d 550
• Parties: Claude L. TRUSLER, Appellant, v. Louis P. GALAMBOS, E. Paul du Pont, Jr., R. Jacques T. du Pont, Farm Bureau Oil Company, Inc., Appellees. ARDEE OIL CO., Claude L. Trusler, Individually and as Director and Vice President of Ardee Oil Co., Appellants, v. Louis P. GALAMBOS, E. Paul du Pont, Jr., Individually and as Director and President of Ardee Oil Co., R. Jacques T. du Pont, Farm Bureau Oil Company, Inc., Appellees.
• Court: Indiana Supreme Court

Page 550

149 N.E.2d 550

238 Ind. 195

Claude L. TRUSLER, Appellant, v. Louis P. GALAMBOS, E. Paul du Pont, Jr., R. Jacques T. du

Pont, Farm Bureau Oil Company, Inc., Appellees.

ARDEE OIL CO., Claude L. Trusler, Individually and as Director and Vice President of Ardee Oil Co., Appellants, v. Louis P. GALAMBOS, E. Paul du Pont, Jr., Individually and as

Director and President of Ardee Oil Co., R.

Jacques T. du Pont, Farm Bureau Oil

Company, Inc., Appellees.

No. 29648.

Supreme Court of Indiana.

April 18, 1958.

Ellis B. Anderson (of Butt, Bowers & Anderson), Evansville, for appellants.

McDonald & McDonald, Princeton, for appellees.

PER CURIAM.

Appellants have filed one transcript, containing one general bill of exceptions, and one assignment of errors. The appellee Louis P. Galambos has filed a motion to dismiss the appeal. For the purposes of deciding the motion to dismiss, we may adopt part of the appellants' statement of the record in the trial court, contained in appellants' original brief on the merits, as follows:

'The appellee, Louis P. Galambos, filed two actions in the Court below. One was against appellant, Claude L. Trusler, and appellees, E. Paul du Pont, Jr., R. Jacques T. du Pont and Farm Bureau Oil Company, Inc., and was entitled Cause No. 58-168 in said Court. It was in two paragraphs, the first paragraph of which seeks the dissolution of an alleged partnership, syndicate or joint venture commonly known as the 'Kentucky-Illinois Syndicate' and an accounting. The second paragraph of said complaint seeks the dissolution of an alleged partnership, syndicate or joint venture commonly known as the 'Kentucky Syndicate' and an accounting. Under both paragraphs, said appellee, Louis P. Galambos, sought the appointment of a receiver pendente lite to take charge of the property and assets of said alleged partnerships, syndicates or joint ventures and to sell and dispose of the same and to wind up the partnership business. * * *

'The second action filed by said appellee, Louis P. Galambos, is one which shall be referred to, as a matter of convenience in this brief, as the 'corporate' suit or cause, and was against appellants Ardee Oil Co. and Claude L. Trusler, individually and as Director and Vice President of said company, and against appellees E. Paul du Pont, Jr., individually and as Director and President of said company, R. Jacques T, du Pont and Farm Bureau Oil Company, Inc. It was assigned Cause No. 58-169 by the trial court. It was brought by said appellee as a stockholder in said Ardee Oil Co. to recover $150,000 as lost income or dividends allegedly due and owing to him by said corporation as a part of an alleged conspiracy against him by all of the other said parties except Farm Bureau. Said Galambos alleged the insolvency of said corporation and requested the appointment of a receiver pendente lite to take charge of the properties and assets of said company, to operate and manage the same and receive and preserve the property and income therefrom to the persons rightfully entitled thereto.

'In both of said actions, appellee Farm Bureau Oil Company, Inc., was joined as a party defendant only as a stakeholder as the purchaser of the oil and/or gas produced from certain oil and gas leasehold estates or interests therein which allegedly were owned either by said syndicates or by said Ardee Oil Co.'

In each cause the court appointed a receiver, and from these separate interlocutory orders this appeal is prosecuted.

The general bill of exceptions containing the evidence discloses that at the beginning of the hearing the following statements were made by counsel:

'Mr. Butt: Is there anything in the record to indicate that these causes have been consolidated for the purpose of this hearing?

'Mr. McDonald: No. I was under the impression that the record so showed. Are you objecting to the consolidation of them?

'Mr. Butt: I believe there will be no objection.

'Mr. McDonald: Let the record show that by agreement of the parties, for the purpose of this hearing on the application for a Receiver pendente lite, the evidence in cause No. 58-168 and No. 58-169 will be introduced in both cases at the same time.'

The record fails to disclose that the court made an order consolidating the two causes as one cause, but the record does show the following entry:

'And now said parties stipulate and agree in open court, before commencement of the hearing of evidence herein that the evidence received upon this application and hearing herein may be the court be considered and received in this cause No. 58-168 as well as upon the application for hearing in cause No. 58-169 pending in this court upon application for receivership.'

There is no general statute in Indiana authorizing the consolidation of causes in trial courts, although § 43-706, Burns' 1952 Replacement, does authorize consolidation in actions to foreclose mechanics' liens. Central States Gas Co. v. Parker Russell Mining, etc., Co., 1925, 196 Ind. 163, 164, 142 N.E. 119. The rule is well settled in Indiana that trial courts do have the inherent power to consolidate causes in proper cases to expedite administration of justice. Trook v. Crouch, 1923, 82 Ind.App. 309, 312, 137 N.E. 773; Oldfather v. Zent, 1894, 11 Ind.App. 430, 432, 39 N.E. 221.

Rule 1-4A on consolidation, effective January 1, 1958, does not change the rules on consolidation approved in Russell v. Johnson, 1943, 220 Ind. 649, 46 N.E.2d 219, hereafter noted.

The most recent and comprehensive statement of this court in the matter of consolidation is contained in Russell v. Johnson, 1943, 220 Ind. 649, 658, 659, 46 N.E.2d 219, supra, wherein the following Massachusetts ruling was cited and approved:

'(1) Where several cases are pending upon different causes of action, involving in substance but one question, a court has inherent power to prevent the scandal to the administration of justice which would result from a trial of each case separately, and as one method of avoiding it may stay proceedings in all cases but one, and see whether the disposition of that one may not settle the others. Without tracing its history, this procedure is now firmly settled as a part of the common law. * * *

'(2) Where several causes are pending between the same or different parties which grow out of a single transaction or which involve an inquiry into the same event in its general aspects, although the details of evidence may vary materially in fixing responsibility, the court may order them tried together. But they continue separate so far as concerns docket entries, verdicts, judgments and all aspects save only the one of joint trial. This is a frequent practice, and finds many illustrations in our decisions. Burke v. Hodge, 211 Mass. 156, and cases collected at 159, 97 N.E. 920; Commonwealth v. Robinson, 1 Gray [Mass.] 555, 560. Commonwealth v. Seeley, 167 Mass. 163, 45 N.E. 91. It is to a consolidation of this kind that reference was made by Mr. Justice Gray in Mutual Life Ins. Co. v. Hillman, 145 U.S. 285, in saying at page 293, 12 S.Ct. 909, at page 912, 36 L.Ed. 706, 'But although the defendant...