156 Ind. 20 | Ind. | 1901
Appellee’s complaint (caption and exhibit omitted) reads: “Daniel M. Bradbury, the plaintiff, complains of Francis T. Hord, trustee, successor to George P. Bissell, trustee, and says that heretofore, to wit, on the 20th day of February, 1875, Nancy S. Beaty, of the city of Indianapolis, Marion county, Indiana, executed and delivered to George P. Bissell, trustee, a certain trust deed upon certain real estate in Beaty’s addition to the city of Indianapolis, to secure the payment of thirty bonds for the sum of $1,000 each, which bonds -were sold and are still held by divers persons whose names are to the plaintiff unknown; that said George P. Bissell remained and continued to act as such trustee for the holders of said bonds from the date of said trust deed until the 11th day of April, 1891, on which latter date said George P. Bissell died; that during the time in which said Bissell was acting as said trustee, and to the date of his death, he was a non-resident of the State of Indiana; that afterward, to wit, on the-day of February, 1896, the defendant, Francis T. Hord, was by this court appointed as the successor to said George P. Bissell as trustee for the holders of said bonds; that during the time said George P. Bissell was acting as trustee as aforesaid, this plaintiff, at the instance and request of said George P. Bissell, trustee, and the beneficiaries, in said trust, rendered to said Bissell and the beneficiaries in said trust divers and numerous services as their attorney in the matter of collecting, settling and adjusting the claim of George P. Bissell as trustee against said Nancy S. Beaty and her estate after her death; and that at the time of the death of said George P. Bissell, trustee, he was indebted to this plaintiff in the sum of $4,413.85 for said services, as is more fully'shown by a bill of particulars herewith filed and made a part hereof, marked exhibit A; that on the
The sufficiency of the fourth paragraph of answer depends upon the solution of three questions: Were there two separate and distinct trusts, or was there but one eptire trust % Did appellee perform services' under two separate
(1) The present action was prosecuted by hppellee against Ilord, trustee, successor to Bissell, trustee. The judgment pleaded as a former adjudication was rendered against appellee in favor of Ilord, trustee, successor to Bradbury, trustee. If there were two trusts, there' could be no such identity or privity of parties as would make the elder proceeding an adjudication of the.later. A trust deed was executed in 1875. Bissell was named in it as -trustee. The beneficiaries were the holders of the bonds secured joy the trust deed. On default, it was Bissell’s duty to .proceed under the trust deed to collect the money due on the bonds. Bissell was a non-resident. Appellee was-a. resident lawyer. As shown by the first item in the bill of particulars, filed with the complaint as 'an exhibit, appellee began to render services in the enforcement and collection of the debt as early as May 7, 1881.' By May 10, M887, a part of the debt had been collected, and- on that day (to quote from the complaint) “by an arrangement between Bissell, trustee, and the executor of the Beaty estate the balance of the claim on the bonds was settled by receiving from the executor a conveyance of 500 or more lots in Beaty’s addition to Indianapolis, and the conveyance -was made to this plaintiff [appellee] as a sub-trustee under and for Bissell, trustee, and while acting as such sub-trustee plaintiff [appellee] sold a large portion of the real estate and collected and received large sums of money.” The lots were taken in settlement of the balance of the claims on the bonds. The bondholders were the beneficiaries. The lots became part of the fund in the trust that originated under the trust deed of 1875. The so-called sub-trusteeship.was “under and for Bissell, trustee”. It was, in substance, simply a convenience in executing Bissell’s duties as-.trustee. There was, therefore, but the one entire trust.
(3) The entry was made four weeks after the judgment was rendered. As against the pleader, it will be presumed, in the absence of a direct averment to the contrary, that the entry was made at the same term at which the judgment was rendered and while the cause was in fieri. The entry, therefore, will be considered as having been made immediately following the judgment. By the entry the court declared that the judgment already rendered “shall not extend to or be held as an adjudication of any claim or claims of said D. M. Bradbury for compensation of services as attorney rendered to said bondholders and said Bissell, trustee herein, prior to the 10th day of May, 1887; that said order and judgment shall be without prejudice to the rights of said D. M. Bradbury in and to said claim for attorney’s fees”. This was just as effective as was a declaration that an instrument which in law constituted a mortgage should never be considered or treated as a mortgage. Proctor v. Cole, 66 Ind. 576. The effect of an attempted withdrawal of a part of a cause of action is fully considered in Indiana, etc., R. Co. v. Koons, 105 Ind. 507, and cases therein cited. In this case, however, there was no attempt to withdraw a part of the cause of action from the consideration of the
.Appellee contends that appellant is not entitled to the benefit.of the judgment as a former adjudication because it was upon appellant’s objection that the evidence in support of-the present complaint was excluded by the Marion Superior Court. An appellant can not obtain a reversal on account of erroneous rulings made at his request in the proceedings. and judgment appealed from. But certainly a judgment debtor can not escape the judgment by failing to appeal from erroneous rulings and by relying, in a new action, on the errors committed against him in the former action in which the judgment was obtained.
Judgment reversed, with instructions to overrule the demurrer to the fourth paragraph of answer.