Wright v. Union Cent. Life Ins. Co., 26799.

• Decision Date: 26 October 1937
• Docket Number: No. 26799.,26799.
• Citation: 212 Ind. 563,10 N.E.2d 726
• Parties: WRIGHT et al. v. UNION CENTRAL LIFE INS. CO.
• Court: Indiana Supreme Court

212 Ind. 563

10 N.E.2d 726

WRIGHT et al.

v.UNION CENTRAL LIFE INS. CO.

No. 26799.

Supreme Court of Indiana.

Oct. 26, 1937.

Action by the Union Central Life Insurance Company against James M. Wright and others. Judgment for plaintiff, and from a judgment granting plaintiff a writ of assistance, defendants appeal.

Affirmed.Appeal from Adams Circuit Court; Huber M. De Voss, Judge.

Samuel E. Cook and Homer E. Bailey, both of Huntington, and Wheeler Ashcraft, of Portland, for appellants.

Roscoe D. Wheat, of Portland, for appellee.

TREMAIN, Judge.

On the 1st day of October, 1925, the appellant James M. Wright was the owner of 200 acres of land in Jay county, Ind., and executed a mortgage to the appellee to secure a debt of $9,000. After the execution of the mortgage and before a foreclosure suit was filed, he conveyed the land to his wife, son, daughter, and son-in-law in parcels. The appellee filed its action in the Jay circuit court to foreclose said mortgage and made all the named parties defendants. The death of the wife was suggested to the court, and the cause was dismissed as to her.

Pending the foreclosure suit, and on the 30th day of October, 1934, James M. Wright filed his petition in bankruptcy and claimed the benefits of the Frazier-Lemke Act (Bankr.Act, § 75(s), as added by Act Cong. June 28, 1934, 48 Stat. 1289, 11 U.S.C.A. § 203(s) note). On May 27, 1935, personal judgment was rendered against the said James M. Wright for the sum of $11,975.11, and for foreclosure of the mortgage as against all of the defendants. This judgment was rendered in the Adams circuit court, a change of venue having been taken by the defendant James M. Wright from the Jay circuit court. An order of sale was issued to the sheriff of Jay county, and on July 20, 1935, the real estate was sold to the appellee for the amount of its judgment and costs. A certificate of sale was issued to it, and on July 20, 1936, the property not having been redeemed, a sheriff's deed was duly executed to the appellee.

The appellants continued to hold possession of said real estate, and upon demand refused to surrender possession. The appellee filed a petition in vacation for a writ of assistance in the original action to foreclose the mortgage, in the Adams circuit court, and caused notice to be served upon appellants. The appellants appeared and filed answers in which they objected to the jurisdiction of the court, and also claimed that they were entitled to hold possession of the real estate for a period of three years, pursuant to the Frazier-Lemke Act (Bankr.Act § 75(s), as amended by Act Cong. Aug. 28, 1935, § 6, 11 U.S.C.A. § 203(s). James M. Wright filed a motion and affidavit for a change of venue from the county, which the court overruled. A hearing was had, in vacation, and the court granted the writ of assistance, and ordered immediate delivery of the possession of the land to the appellee. The appellants filed motion for a new trial, which was overruled, and this appeal was perfected.

The claim of the appellants to the benefits of the moratorium provision of the Frazier-Lemke Bankruptcy Act was decided in this court adverse to their contention in the case of Wright et al. v. Union Central Life Ins. Co. (Ind.Sup.) 7 N.E.(2d) 206. The question there before the court and the facts are the same as in the case at bar.

The appellants admit in their brief that a writ of assistance is a summary proceeding and cite authorities holding that it is ancillary to the main action, but they claim that it is a civil suit, and under the statute are entitled to a change of venue from the county. This court has held that a change of venue does not lie from an application for a receiver which is ancillary to a pending action. This is because the application for the appointment of a receiver does not ask for a judgment determining the rights of the parties, but asks only for an interlocutory order designed to preserve the status of the parties in reference to the property involved. Stair v. Meissel (1934) 207 Ind. 280, 192 N.E. 453;Kist v. Coughlin (1936) (Ind.Sup.) 1 N.E.(2d) 602,4 N.E.(2d) 533;Vogel v. Chappell (1937) (Ind.Sup.) 6 N.E.(2d) 953.

The...