Zumpfe v. Piccadilly Realty Co.

• Citation: 13 N.E.2d 715,214 Ind. 282
• Decision Date: 23 March 1938
• Docket Number: 27000.
• Parties: ZUMPFE et al. v. PICCADILLY REALTY CO. et al.
• Court: Supreme Court of Indiana

13 N.E.2d 715

214 Ind. 282

ZUMPFE et al. v. PICCADILLY REALTY CO. et al.

No. 27000.

Supreme Court of Indiana

March 23, 1938

Appeal from Probate Court, Marion County; Smiley N. Chambers judge.

Smith Remster, Hornbrook & Smith, Paul Y Davis, Kurt F. Pantzer, Ernest R. Baltzell, and Wm. G Sparks, all of Indianapolis, for appellants.

John G. McNutt, of Indianapolis, for appellees.

SHAKE Judge.

On November 14, 1931, the Indianapolis Coal Company recovered a judgment in the Marion probate court against the Piccadilly Realty Company, and obtained an order for the appointment of a receiver, with the usual powers, to take charge of its assets and manage and conduct its business. The receivership assets consist of certain real estate in the city of Indianapolis, upon which is situated an eight-story building known as the 'Piccadilly Apartments.' Chester L. Robinson was originally appointed as receiver, but he has since been succeeded by the appellee E. Kirk McKinney.

On December 7, 1935, the receiver filed with the court of his appointment a petition wherein he recited that a demand in writing had been made upon him by the appellants herein that he apply to the court for an order to sell the assets of said receivership within ten days. In his petition the receiver asked that notice issue to the parties in interest, that a hearing be had, and that the court instruct him with reference to his conduct in the premises. The petition was sustained and notice duly issued and served.

Thereupon, the appellants filed a cross-petition in which they showed that the Piccadilly Realty Company was incorporated under the laws of Indiana on August 23, 1927; that it had authorized preferred stock in the aggregate amount of $300,000, consisting of 3,000 shares of a par value of $100 per share, of which 2,850 shares were issued and outstanding; that the remainder of said shares had been redeemed and retired; that the appellants were each preferred stockholders of said corporation, and constituted a protective committee for all of the preferred stockholders under an agreement in force; that $35,000 of said preferred stock had matured and was due; that there were accumulated unpaid dividends aggregating $68,400. The appellants asked in their cross-petition that the receiver be directed to sell the assets of his trust upon such terms and conditions as the court might deem proper. To the appellants' cross-petition the receiver filed his answer in general denial. The Piccadilly Realty Company, through one firm of attorneys, filed an answer consenting to the sale, and, through another, an answer asking the court to deny the appellants' petition.

The matter came on for hearing before the court, and, after considering the evidence, the court rendered its judgment denying appellants' cross-petition, and directing the receiver to continue in charge of the assets of his trust. There was a motion for a new trial on behalf of the appellants, in which it was assigned that the decision of the court was not sustained by sufficient evidence and was contrary to law. This appeal followed, and the assignment of error challenges the ruling on the motion for a new trial.

The appellants contend that there was error in overruling their motion for a new trial because the evidence was conclusive that the preferred stockholders were entitled to the redemption of their shares and the liquidation of the assets of the corporation by sale. The appellee receiver contends, on the other hand, that: (1) The trial court was without jurisdiction to order a sale because the judgment appealed from was not final and not such an interlocutory order from which appeals may be taken; (2) there was no trial within the statute providing for new trials; (3) that an order of sale and for the liquidation of the company would have been outside the issues, and erroneous; (4) that the court had no power, under the facts shown, to liquidate the assets of the corporation by sale; (5) that the matter submitted to the court for determination was one of discretion, and no abuse of discretion was shown; and (6) that under the evidence the preferred stockholders were not entitled to the liquidation of the receivership assets. Since the sole proposition relied on by the appellants and the appellees' sixth proposition are the same and relate to the sufficiency of the evidence, we shall pass them momentarily and consider first the appellees other propositions, urged to defeat appellants' contention.

The parties agree that this is not an appeal from an interlocutory order, and this is correct, since the situation does not bring the matter within the provisions of our statute authorizing such appeals. Burns' Ann.St.1933, § 2-3218, section 490 Baldwin's Ind.St.1934. This proceeding, if reviewable, must rest upon the general provisions of the statute authorizing appeals from final judgments. Burns' 1933, § 2-3201, section 471, Baldwin's Ind.St.1934. Appellees say that there was no such final judgment, and call attention to the fact that the proceeding was begun by the filing of a petition by the receiver for directions and instructions. If this was the only showing of an adversary proceeding, appellees' contention would have much merit. But after the filing of the receiver's petition for instructions the court ordered notice to appellants by summons, in response to which they appeared and filed a cross-petition, demanding affirmative relief. Issues were formed, a hearing had, and the court entered a judgment denying the cross-petition and ordering the receiver to continue with the administration of his trust.

A final judgment from which an appeal will lie is one which determines the rights of the parties in the suit, or a distinct and definite branch of it, and reserves no further question or direction for future determination. Home Electric Light & Power Co. v. Globe Tissue Paper Co., 1896, 145 Ind. 174, 44 N.E. 191. Applying this test we are constrained to hold that the order entered by the court in the instant case constituted an appealable final judgment. It amounted to more than a mere direction to the receiver. It adjudicated that appellants were not entitled to an order of sale of the real estate involved under their cross-petition, to which answers had been filed by the parties in interest, thereby forming an issue for the determination of the court.

In General Highways System, Inc., v. Thompson et al., 1927, 88 Ind.App. 179, 155 N.E. 262, 156 N.E. 407, it was held that a judgment rendered in a receivership on an intervening petition, objecting to the allowance of a mortgage executed by the insolvent as a preferred claim, was a final judgment, from which an appeal could be taken, as the only questions presented by the petition were finally determined. And it has also been held that the allowance of an intervener's claim against a receiver constitutes a final judgment from which an appeal may be taken. Indiana National Bank of Indianapolis v. Danner, Receiver, 1930, 204 Ind. 709, 170 N.E. 327.

The judgment appealed from was final and not interlocutory, and a motion for a new trial was proper. It is not necessary, to justify a motion for a new trial, that the issues be formed by a complaint and a demurrer, or by a complaint and answer. There has been a trial, in contemplation of the statute authorizing a new trial, when there has been 'a judicial examination of the issues, whether of law or of fact, in an action.' Burns' 1933, §§ 2-1901, 2-2401, sections 324 and 368 Baldwin's Ind.St.1934.

Appellees are in error in their assumption that the issues were confined to those stated in the original complaint in the lower court, wherein the Indianapolis Coal Company sought a judgment and the appointment of a receiver. Our Code makes specific provision for intervention, Burns' 1933, § 2-222, section 38 Baldwin's Ind.St.1934, and it is the policy of the law in all proper cases to avoid a multiplicity of suits. We perceive no practical difference in the situation of the parties since appellants appeared, in response to summons, and filed a cross-petition, than if they had intervened on their own motion and filed a cross-complaint. The result attained was the same, and the means adopted were proper and appropriate. Our conclusion in this regard does not violate the rule laid down by this court in Wayne Pike Co. v. Hammons et al., 1891, 129 Ind. 368, 382, 27 N.E. 487. In that case it was held that an order for the sale of receivership assets was without the issues, but the facts disclosed that the receivership was not of a general nature, but one brought by a stockholder against a corporation and its officers merely for an accounting. Here, on the other hand, the plaintiff obtained a money judgment, and the appointment of a receiver on the ground that the defendant was in imminent danger of insolvency. The property of the corporation which passed into the hands of the receiver thereby became a trust fund for the benefit of all those...