Wagner v. McFadden

• Decision Date: 12 February 1941
• Docket Number: No. 27405.,27405.
• Citation: 218 Ind. 400,31 N.E.2d 628
• Parties: WAGNER et al. v. McFADDEN et al.
• Court: Indiana Supreme Court

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.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on deposit was subject to the withdrawal from the bank by the trustees of said local union and that the same would be withdrawn and lost to the plaintiffs unless the bank and the defendants be restrained from so doing.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 of America; that the plaintiffs have no just claim to any of the property, funds, premises, papers, or the name of the International Union, United Automobile Workers of America. This answer closed with a prayer for cost.

The court found for the defendants and entered the following judgmet: ‘It is, therefore, considered, adjudged, and decreed by the court that the plaintiffs take nothing by their cause of action herein, and that the defendants recover of and from the plaintiffs all costs laid out and expended, all of which is duly ordered by the Court, this, the 22nd day of September, 1939.'

After the close of the term at which the above judgment was entered, this action was filed by the defendants in the original action to enforce the above and foregoing decree, and was denominated a ‘petition to enforce decree in Equity.’ In their petition, the appellants set out the substance of the facts alleged in the original complaint and the answer. They also set out the finding of the court and the...