Wagner v. McFadden, No. 27405.

Docket NºNo. 27405.
Citation218 Ind. 400, 31 N.E.2d 628
Case DateFebruary 12, 1941
CourtSupreme Court of Indiana

218 Ind. 400
31 N.E.2d 628

WAGNER et al.
v.
McFADDEN et al.

No. 27405.

Supreme Court of Indiana.

Feb. 12, 1941.


Action by Bernard Wagner and others against Adrian G. McFadden and others, to enforce a decree in favor of the plaintiffs in an action for an injunction and accounting in which the plaintiffs were defendants. The defendants filed a motion to strike out the petition to enforce the decree. From a judgment sustaining the motion, the plaintiffs appeal.

Judgment affirmed.

[31 N.E.2d 628]

Appeal from Circuit Court, Dubois County; Frank E. Gilkison, judge.
Rhoads & Jacobs and Andrew Jacobs, all of Indianapolis, for appellants.

Elmer Q. Lockyear, Theo. Lockyear, and Charles Eichel, all of Evansville, for appellees.


ROLL, Judge.

Appellees, as plaintiffs, had commenced an action to obtain an injunction and accounting against appellants. Appellants prevailed in this action and a decree was entered in their favor. Appellants now file this petition, alleging a violation of the decree by appellees, who were the losing parties in the first action.

Appellees filed their motion to strike out appellants' petition which the court sustained. This action of the court is the only error assigned on this appeal.

It appears from the original complaint for an injunction and accounting filed by appellees that there had arisen a factional dispute between the members of said union, which had resulted in dividing them into two rival groups. The plaintiffs claimed that they were the majority group and that their officers were the legal officers of the union and were entitled to the money, property, books, records, and the office belonging to the union. It is alleged in the complaint that the defendants were the minority group and that they were in possession of the office and had control of the books, records and funds of said union. The complaint further alleged that the money on deposit was subject to the withdrawal from the bank by the trustees of said local union and that the same would be withdrawn and lost to the plaintiffs unless the bank and the defendants be restrained from so doing. The prayer was for an injunction and an accounting.

Appellants answered by two paragraphs. The first was a general denial and the second paragraph denied specifically the material allegations of the petition. They denied that there were two factions in said union. They alleged that the plaintiffs do not represent either, Local No. 265, of the International United Automobile Workers...

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4 practice notes
  • Clouser v. Mock, No. 29594
    • United States
    • Indiana Supreme Court of Indiana
    • 26 January 1959
    ...must seek such power, if any, in the statutes. McIntosh v. Monroe et al., 1953, 232 Ind. 60, 63, 111 N.E.2d 658; Wagner v. McFadden, 1941, 218 Ind. 400, 403, 31 N.E.2d 628; Scheiring v. Baker, 1931, 202 Ind. 678, 682, 177 N.E. 866; Jenkins et al. v. Corwin, Adm'r, 1876, 55 Ind. 21; Rooker v......
  • Kist v. Coughlin, No. 16787.
    • United States
    • Indiana Court of Appeals of Indiana
    • 12 October 1943
    ...Co. v. State ex rel., 1919, 69 Ind.App. 450, 122 N.E. 30;Kruger v. Duckwall, 1922, 78 Ind.App. 577, 134 N.E. 895;Wagner v. McFadden, 1941, 218 Ind. 400, 31 N.E.2d 628. Circumstances tending to excuse the untimeliness of these motions are set out therein but no facts, however extenuating, ca......
  • Wadkins v. Thornton, No. 971A187
    • United States
    • Indiana Court of Appeals of Indiana
    • 16 March 1972
    ...was thus [151 Ind.App. 384] powerless in a new term to correct or amend judgments rendered in a previous term. Wagner v. McFadden, (1940) 218 Ind. 400, 31 N.E.2d 628; Scheiring v. Baker, (1931) 202 Ind. 678, 177 N.E. This state of affairs was changed in 1967, when the distinction between te......
  • Jurdzy v. Liptak, No. 30168
    • United States
    • Indiana Supreme Court of Indiana
    • 2 March 1962
    ...and jurisdiction must be sought in the statutes. McIntosh v. Monroe et al. (1953), 232 Ind. 60, 111 N.E.2d 658; Wagner v. McFadden (1941), 218 Ind. 400, 31 N.E.2d 628; Burns' § As pointed out previously, the default judgment in this case was vacated and set aside within the term in which it......
4 cases
  • Clouser v. Mock, No. 29594
    • United States
    • Indiana Supreme Court of Indiana
    • 26 January 1959
    ...must seek such power, if any, in the statutes. McIntosh v. Monroe et al., 1953, 232 Ind. 60, 63, 111 N.E.2d 658; Wagner v. McFadden, 1941, 218 Ind. 400, 403, 31 N.E.2d 628; Scheiring v. Baker, 1931, 202 Ind. 678, 682, 177 N.E. 866; Jenkins et al. v. Corwin, Adm'r, 1876, 55 Ind. 21; Rooker v......
  • Kist v. Coughlin, No. 16787.
    • United States
    • Indiana Court of Appeals of Indiana
    • 12 October 1943
    ...Co. v. State ex rel., 1919, 69 Ind.App. 450, 122 N.E. 30;Kruger v. Duckwall, 1922, 78 Ind.App. 577, 134 N.E. 895;Wagner v. McFadden, 1941, 218 Ind. 400, 31 N.E.2d 628. Circumstances tending to excuse the untimeliness of these motions are set out therein but no facts, however extenuating, ca......
  • Wadkins v. Thornton, No. 971A187
    • United States
    • Indiana Court of Appeals of Indiana
    • 16 March 1972
    ...was thus [151 Ind.App. 384] powerless in a new term to correct or amend judgments rendered in a previous term. Wagner v. McFadden, (1940) 218 Ind. 400, 31 N.E.2d 628; Scheiring v. Baker, (1931) 202 Ind. 678, 177 N.E. This state of affairs was changed in 1967, when the distinction between te......
  • Jurdzy v. Liptak, No. 30168
    • United States
    • Indiana Supreme Court of Indiana
    • 2 March 1962
    ...and jurisdiction must be sought in the statutes. McIntosh v. Monroe et al. (1953), 232 Ind. 60, 111 N.E.2d 658; Wagner v. McFadden (1941), 218 Ind. 400, 31 N.E.2d 628; Burns' § As pointed out previously, the default judgment in this case was vacated and set aside within the term in which it......

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