Wehmeier v. Mercantile Banking Co.
| Decision Date | 16 February 1912 |
| Docket Number | No. 7,501.,7,501. |
| Parties | WEHMEIER et al. v. MERCANTILE BANKING CO. et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; Vinson Carter, Judge.
Action by Otto G. Wehmeier and others against the Mercantile Banking Company and others. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal. Reversed, with directions to overrule demurrer and for further proceedings.Wm. C. Thompson and Franklin McCray, for appellants. G. W. Paul and William B. Paul, for appellees.
Appellee Mercantile Banking Company has moved that this appeal be dismissed for the reason that no final judgment in the case has been rendered by the lower court from which an appeal to this court will lie. Appellants brought this action against the Mercantile Banking Company and seven other defendants for a dissolution of partnership in a banking business, for an accounting, and for the appointment of a receiver for said bank. The complaint was in one paragraph, to which appellee Mercantile Banking Company filed a demurrer. The demurrer was sustained, and the ruling on the same is the only error presented by appellants. Upon motion by appellee company the court rendered judgment as follows:
The right of appeal is statutory, and in cases of this character it is expressly provided that the appeal shall be taken from a final judgment. Burns 1908, § 671.
[1] A “final judgment” was defined, in Neyens v. Flesher, 39 Ind. App. 399, at page 402, 79 N. E. 1087, as a judgment “that at once disposes of all the issues, as to all the parties, involved in the controversy presented by the pleadings, to the full extent of the power of the court to dispose of the same, and puts an end to the particular case as to all of such parties and all of such issues.” To the same effect are Barnes v. Wagener, 169 Ind. 511, 82 N. E. 1037;Keller v. Jordan, 147 Ind. 113, 46 N. E. 343;Hopp v. Luken, 44 Ind. App. 568, 89 N. E. 916;Rife v. Diamond, etc., Co., 42 Ind. App. 346, 85 N. E. 726.
[2] The form of the judgment rendered in this case is that of a final judgment. Thomas v. Chicago, etc., R. Co., 139 Ind. 462-465, 39 N. E. 44;Neyens v. Flesher, 39 Ind. App. 399-403, 79 N. E. 1087.
[3] It is presumed, therefore, for the purpose of the motion to dismiss, that the ruling on the demurrer of appellee Mercantile Banking Company disposed of all of the issues as to all of defendants in the lower court, for Elliott, App. Proc. §§ 718, 719. The demurrer was for (1) the insufficiency of the facts alleged to state a cause of action; (2) defect of parties plaintiff, in this, that the right of action relied upon can be enforced only by the Auditor of State.
The complaint in substance charges that appellants and appellees, other than Mercantile Banking Company, are partners doing business under the name of Mercantile Banking Company and engaged in the business of a private bank in the city of Indianapolis; that the capital stock of said bank was and is $11,000; that appellant Wehmeier paid for and there was duly issued to him $200 of the capital stock of said bank, and he is now the owner thereof; that in the same manner appellant Kerr became and is the owner of $100 of the capital stock of said bank; that since the organization of said bank its business has been conducted by the defendants Albert D. Hall, Robert J. Espy, and James T. Bymaster; that said Espy is president and said Bymaster cashier, of said bank; that the business of said bank “has been mismanaged and the assets thereof misapplied, misused, and wasted, in the following manner.” Here follow detailed averments to the effect that more than 30 per cent. of the capital stock of said bank has been loaned to its officers on insufficient security in violation of the law; that various loans in large amounts have been made to nonresidents without any or on insufficient security, which loans were in fact for the use and benefit of said officers, though nominally to other persons; that large loans have been made to some members of said copartnership on unrecorded, void, and worthless chattel mortgages and other insufficient securities; that said bank has unsecured overdrafts amounting to $211.43 and has cashed a draft for $1,000, which has been dishonored, protested, and the bank has not been reimbursed therefor; that the affairs of said bank have been managed and controlled by said Hall, Espy, and Bymaster, who have so managed them as to consume all the earnings of said bank in expenses and for salaries that were paid for nominal services, only, which have never been authorized by said partnership; that the monthly expenses of said bank under said management is in excess of the earnings thereof; that said bank has deposits of $2,200 subject to check and $115.60 time deposits, and only $1,650.60 in cash resources, and is wholly insolvent; that its resources are being wasted and dissipated by worthless investments, insecure loans, and exorbitant expenses; that the members of said partnership are hopelessly at variance as to the policy to pursue in managing the business of said bank; that appellants have no voice or control in the management of said bank, and no dividends have been allowed or paid; that the members of said firm cannot agree upon a mutual settlement or to a dissolution of said firm; that a continuance of the business under the present management will result in the loss of all the capital stock owned by appellants in said bank, and bring upon them additional personal liability for the debts of said bank; that before bringing this suit appellants demanded from said bank and the members of said firm a dissolution of said partnership and a full accounting of all its business with the members of said partnership, and that necessary steps be taken to accomplish such purpose; that appellees will not consent to such dissolution, and the same can only be accomplished and the interests of appellees in said business preserved by the appointment of a receiver. Prayer for an accounting, dissolution of partnership, and the appointment of a receiver.
[4] We think the complaint is sufficient to withstand the demurrer for want of facts, if appellants have the right to maintain the suit. Burns' Statute 1908, § 1279; High on Receivers (4th Ed.) § 472 et seq.; Fink v. Montgomery, 162 Ind. 424-427, 68 N. E. 1010;Levin v. Florsheim & Co., 161 Ind. 457-463, 68 N. E. 1025;Chicago So. Ry. Co. v. Kenney, 159 Ind. 72-78, 62 N. E. 26;Sheridan Brick Works v. Marion Trust Co., 157 Ind. 292-298, 61 N. E. 666, 87 Am. St. Rep. 207;Wallace, Rec'r, v. Milligan, 110 Ind. 498, 11 N. E. 599;Webb v. Allen, 15 Tex. Civ. App. 605, 40 S. W. 342; Allen v. Hawley, 6 Fla. 142, 63 Am. Dec. 198, 208; Saylor v. Mockbie, 9 Iowa, 209.
[5] The further and more serious question presented is whether appellants have the right to maintain this suit, or whether by statute that power is vested exclusively in the Auditor of State.
The act of 1907 (section 3409, Burns 1908) relating to private banks provides, among other things, the following: ...
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