*1 the client appearance his up enter effort to low his neglect excusable at the court house constitutes his party upon to see other reliance some for his urges- upon Appellant duly aрpearance entered. to reverse this court upon the merits. try permit the case them to
order to might prove in- might equitable in case What be appellant’s litigants If equitable in the future. to other arrangеments made theory adopted, be then similar papers misplacing with a Office or Clerk’s precedent and courts would become a one’s desk would giving relief, duty placed imperative under knowing preventing thus from whether lapse time. until after a a valid probative evidence value to sus- There is credible findings and the tain the of the trial court contrary law. Judgment affirmed.
Note.—Reported in 125 N. E. 2d al.
Bahar et etc. et al. 18,670. May 27, Filed [No. 1955.] *2 George PawlоsM, A. James P. Gleason of Mich- igan City, appellants. for Kenefick, Michigan Jaekson, Paul F.
William N. City, Dempsey, Bend, F. and Kenneth of South pellees. by the to us was transferred J. This case
Royse, Re §4-217, Supreme pursuant Burns’ Court 302, 123 Ind. (1954), 234 placement. Bahar Tadros N. E. 2d 189. appellant properly
To understand expedient to set out we deem seeks in that opinion of the Court some detail case: 1954, appellants recovered a “On Sam cоsts, fore- relief $17,000 and without mortgage against equitable their closure of appellees ana, County, Indi- real in LaPorte estate . .
. by the real estate “And for sale of said county distribution sheriff proceeds: and the costs of payment accrued 1st. To of costs sale; payment of the 2nd. To together with interest thereon. paid overplus, any, the court if clerk of *3 lawfully entitled to receive for the use of the goods, Any dеficiency to be on the the same. levied chattels, tenements of Sam lands and Tadros, subject execution, to without sale appraisement or laws. relief from valuation “Upon sale, all evict the was оrdered to sheriff put purchaser appellees the of premises. the judgment is a final with “This presumptions provided by law. From favor as its appeal an will lie. days seven “On after the final
judgment fied rendered, apрellants was filed their veri- appointment for the receiver Collected,’ in which it ‘To Secure Rents is averred: during pendency ‘That of this action defendant, First National Bank Mich- igan City, Indiana, Trustee, has collected rent premises in approxi- from said mately the sum of Fifty- Two Thousand Two Hundred ($2255.00). five and Dollars no/100 ‘It is also averred that the court had ordered sale of the real satisfy Tadros, “to estate afore described defendant, Sam Dadrus, the sum also known as Sam Sixty of Nineteen Thousand Hundred Seven ($19760.00) Dollars, plus interest and bring costs.” “That the sale will not sufficient satisfy the debt.” prayer alternative, ‘The is in the that a re- appointed charge cеiver be to take of the rents by trustee, so alternative to order in the collected said bank as “or defendant, First Na- said Michigan City, Indiana, Bank tional Trus- tee, over, all rents collected to the Clerk county of this apply sheriff of the judgment” proper on said and all relief.’ delay “After considerable the matter was finally by May heard court on and the thereon, part material is as the record made follows: having evidenсe, ‘The court heard argument counsel now denies said
plication.’ appeal taken, original treating “From this action is interlocutory it as an order in the suit to filed in mortgage. The record foreclose was 17, 1954, forty-one days on June after this court complained appeal order of was made. The the not Repl. taken under Burns’ 1946 3-2603. Sec. question: interlocutory “Our first Is this an subject so, If and the order? order is within granted authority by Seс. Burns’ 1946 properly Repl., the is taken to this court. inclusive, Repl. 2-3222 2-3218 to Burns’ Secs. held that have heretofore We interlocutory judgment, order, ‘An or de hearing made before the final cree one Watson, the merits. 2 Rev. of Works’ *4 Hogate §2441; Pleading Practice 1 and §739; Judgments 1 Practice Freeman ed.), (5th An order of the made §38. cause, progress requiring some thing observed, but, to be done not deter-
461 interlocutory interlocutory controversy, mining is аn an order, called sometimes and is (1883), Crane, judgment. Guardian Pfeiffer Telegraph 487; Co. 485, Union 89 Ind. Western Locke, (1886), Ind. 7 Admr. 107 v. N. E. 579.’ Cirtin (1928), Ind. 199 v. Cirtin ‘Inter 494. also See 998; Dictionary, p. locutory,’ Lowe’s Law Black’s Practice, Revision, Indiana Work’s S., Interlocutory, 65.126, 352; p. 47 C. J. Sec. Orders, §2b, 85; S., p. p. J. Motions C. Error, §94, p. 7; S., Appeal J.C. begun proceeding a full “It clear this was is had after the final of foreclosure week principal The been the not authorize an inter case. renderеd court could stage locutory to at of the order issue right proceedings. locutory appeal an inter The from provided by ‘Thir order as subsection teenth’ of to 4-214 was therefore available Sec. appellant. application “There is no contention that the made under Burns’ prayer the first sentence of Sec. Repl. 1946 indicates that alternative nature of the proceeding is effort by appеllant obtain of rentals paid, appellee theretofore been bank as trustee. jurisdiction “The therefore in Appellate Court.” assigned
The errors here are as follows: denying appellants’ 1. The trial court erred in appointment of a receiver secure rents collected.
2. The denying trial court erred appellants’ ap- plication appointment receiver. denying
3. The trial appellants’ court erred in plication to order First National Bank of Michigan City, Indiana, Trustee, over all rents *5 trial of LaPorte
collected to of or Sheriff Clerk County, Indiana, apply herein. on the failing any to take other The court еrred means to secure the of the rents collected Michigan by appellee, City, First National Bank of Trustee, Indiana, to the herein. question
The which we must determine is: Does first assignment a such an of errors to this court ? argument parties
The briefs of the and their oral court this indicate that when this initi- ated the considered herein an inter- locutory argument order. At the conclusion of the oral permitted we supplemental to submit briefs assignment sufficiency on the of of herein. Appellants types contend is one of the require filing action that does aof motion for trial, support a new cites, and in of this contention among others, following сases:
Wright et al. v. Union Central Insurance Com- Life pany (1937), 563, 212 Ind. 10 N. E. 2d 726. In that Supreme case the Court held the action was for a writ assistance, summary a interlocutory pro- ceeding. Supreme The Court has held this action is interlocutory proceeding. not an Company, Citizens Trust Wheeling Receiver v. Can Company (1927), 311, 199 Ind. involved sustaining action of the trial court in a motion for pro entry. a Supreme nunc tunc Court said: hearing “The of a motion to correct the record judgment by pro of a entry a nunc tunc is not a trial, Code Civil Procedure does not contemplate a motion; trial of proper new such practice except is to to the action of the court in refusing peal, making amendment, and, assign such action of the trial court error.” In Purtlebaugh (1952), Adams 230 Ind. N. E. 2d Court held that in an modify
action to a decree of custody divorce as to the proper сhildren would be to file a motion for a trial, new necessary but it was not to do In so. continuing jurisdiction. actions has For a discussion of actions which it is not neces- sary trial, to file a motion for new p. 391, see Sec. Flanagan, Hamilton, Wiltrout & Indiana Trial and Appellate Practice. *6 opinion
In view of the and decision of the Court supra, case of Bahar it seems
to us this action is in the nature of an action money trial, and received. There was a heard, evidence judg and there was a final ment. The appellant seeks to here only by assignment could be raised of error that the trial overruling court erred in a motion for a new trial. No such motion was filed and the time for filing long such motion elaрsed. has since See. Replacement. Burns’ 1946
Therefore, question having no presented by been assignment herein, affirmed. J.,
Crumpacker, opinion. with concurs
Concurring Opinion J., concurs.—I concur in the results Crumpacker, by reached agree court but I cannot pro- that ceeding inis the nature of an money action for had and received. support “In order to assumpsit a count in money received, general had and it appear must in that actually the dеfendant has received and has in his hands money, something which has money, been received as belonging plaintiff, to the which it duty is his im- mediately pay over.” Jur., 4 Am. Assumpsit, §22. Bahars, theory proceeding.
Such is not the of this here, plaintiffs appellants that do claim below and Bank, money in the hands of the First National Trustee, money a is their and that said trustee is under say duty contrary they it over to them. On the belongs said the court to Tadros and ask sequester through it a receiver or otherwise so apply it will be available to on their in the Tadros event the real does not estate involved bring enough discharge at foreclosure sale to said judgment.
Although remedy by sequestration, in cases of this type, provided by legislature, has never been our there can be no doubt that at exists common law and has by been country through exercised the courts of this judicial writ, resembling law, an exeсution at to se performance cure the of a decree. Clements v. Tillman (1888), 194; Manning Ga. S. E. v. Securities (1909), 238; Co. 242 Ill. 90 N. E. White v. White (1919), 233 Mass. I do not believe sought however that property when the seques to be tered is in the person оf a third under a superior claim right, of title or for the disposed writ can be of without notice to such third *7 person, joinder of issues and a trial thereof. Under proceedings summary circumstances the lose their governed by character and are practice the rules of pertaining equity. to suits in
In the necessary case it was for the court to hear evidence (1) probability determine deficiency after property invоlved; the sale of the (2) ownership of the in ; the hands of the trustee (3) validity agreement against trust as appellants. the claim of the This the court did and appellants. resolved the issues If it com- doing remedy appellants’ error mitted so right no until a motion for a new trial with opportunity the trial court had been afforded any. if correct its it had committed concluded observations, course, only These refer to errors oc- сurring during must, ordinary prac- tice, by a be raised motion new trial. Such are alleged appellants errors the seek now to have tis agree I review and with the court that are not properly presented.
Note.—Reported E. 2d N. 791. Ludwick, Hobbs, Executor of Estate Deceased
et al. et al. Banet 18,579. February 10, Rehearing Filed [No. denied May 27, 1955. Transfer denied 1955.]