51 Ind. App. 216 | Ind. Ct. App. | 1912
— This was an action by appellees against appellants and Joseph O’Brien, clerk of the Pike Circuit Court. The action relates to a former suit, wherein Steele P. Gilmore was plaintiff and the appellants were defendants, and in which appellees herein were attorneys for Gilmore, a minority stockholder in the Princeton Coal and Mining Company. Gilmore charged that appellants Ogle and Hubbard, who owned a majority of the stock, were largely indebted to the company, and refused to pay said indebtedness. The action was begun in the Gibson Circuit Court, and venued to the Pike Circuit Court, where, on May 12, 1904, final judgment was rendered, decreeing that Ogle and Hubbard each pay into the hands of the clerk of the Pike Circuit Court the sum of $9,362.50, out of which the clerk was required to pay plaintiff Gilmore’s attorneys, who are the appellees herein, the sum of $1,000, as expenses and attorney’s fees, and to pay the remainder to the treasurer of the Princeton Coal and Mining Company. It was further adjudged that in case either Ogle or Hubbard failed to make such payment within 120 days, execution should issue, and on collection being made, the clerk should pay $1,000 thereof to said plaintiff’s attorneys. An appeal was taken to the
The action from which this appeal is taken was commenced in the Pike Circuit Court. By their amended complaint, appellees show in detail the facts leading up to the release and satisfaction of the judgment, and that the clerk of the Pike Circuit Court had refused to issue an execution
The court sustained demurrers to the several pleas in abatement, overruled appellants’ demurrer to the amended complaint, and sustained appellees’ demurrer to appellants’ answer. Appellants declining to plead further, and electing to stand on their exceptions to the several rulings of the court, it was adjudged and decreed that the judgment of the Pike Circuit Court, entered on May 12, 1904, is in full force and wholly unsatisfied to the extent of $1,000 and interest from that date; that plaintiffs are entitled to receive and collect said sum, and have executions on said decree and judgment against the property of Ogle and Hubbard respectively as in said decree prescribed; that defendant Joseph O’Brien, as clerk of the Pike Circuit Court, and his successors in office, are ordered by the court to issue execution in obedience to the precipe theretofore filed with him by plaintiffs before the commencement of this action, or on the future order of plaintiffs.
After filing the appeal bond in the Knox Circuit Court to which the cause was venued, and in which it was tried, Alfred M. Ogle died testate, and the executors of his will have been substituted as appellants herein by the order of this court.
The Princeton Coal and Mining Company, Willard W. Hubbard and the executors of the last will of Alfred M. Ogle separately assign error, and said executors and Hubbard jointly assign error. These errors may be reduced to the following propositions: (1) The sufficiency of the joint and several pleas in abatement; (2) the sufficiency of the
It is averred in the joint plea in abatement of Ogle and Hubbard that neither is a resident of Pike county, that the Pike Circuit Court has no jurisdiction of their persons, and that the action should therefore abate.
Pending a ruling on this plea, Ogle “for and on behalf of the defendants”, filed a motion for a change of venue from Pike County, which motion was sustained by the court, and the venue of the action changed to Knox county. Appellees insist that Ogle and Hubbard, by filing the motion for a change of venue, entered a full appearance, and could not therefore question the jurisdiction of the Pike Circuit Court over their persons. Whether the filing of a motion for a change of venue constitutes a full appearance, has never been directly decided by the courts of this State. The rule seems to be that where a motion goes to the merits of the action, the same must be made on full appearance. A motion for a change of venue, while not strictly affecting the merits of the action, necessarily recognizes the jurisdiction of the court over the persons who join in the motion and invokes the aid of the court in that behalf. The filing of such a motion has been held to be an admission of jurisdiction. Feedler v. Schroeder (1875), 59 Mo. 364; Baisley v. Baisley (1893), 113 Mo. 544, 21 S. W. 29, 35 Am. St. 726.
abatement, it is sufficient to say that it was clearly bad on account of uncertainty. Passing over the averments which are mere conclusions, it is not shown by any averment that the parties to the prior action are the same as the parties to the pending action. Needham v. Wright (1895), 140 Ind. 190, 195, 39 N. E. 510; Paxton v.
Appellees, however, insist that the action is not for a mandate, but is in the nature of a bill in equity to carry an existing decree into execution. Such a proceeding is an unusual one, but one that is recognized by the decisions and texts. In Linton v. Potts
(1840), 5 Blackf. 396, 399, the court said: “Bills to carry a former decree into execution are sometimes resorted to, though they are not very common, nor do the principles governing them seem to be distinctly defined. Elementary writers of good authority, however, lay down the law to be, that such bills will be sustained, when, from the neglect of the parties, or some other cause, subsequent events have intervened, which render the further aid of the Court necessary ; and even a person not a party to the decree, when his rights are affected by it, may resort to this remedy. Mitf. Pl. [Mitford, Ch. Pl.] 95; Cooper, Eq. Pl. 99; Story, Eq. Pl. [10th ed.] §343.”
The separate answers of the Princeton Coal and Mining Company, Ogle and Hubbard are identical, and set out in extenso the pleadings, findings and judgment in the action brought by Gilmore, the opinion of the Appellate Court affirming the judgment, the opinion of the Supreme Court dismissing the appeal, the record of the proceedings of the shareholders’ meeting and directors’ meeting, and the release and satisfaction of the judgment by the authorized agent of the corporation.
Without here considering the arrogant humor of the shareholders’ resolution, wherein the court was rebuked and reversed, the obvious fact remains that the Princeton Coal and- Mining Company, for whose benefit the action was originally waged, has released the judgment in so far as it was possible for that corporation to release it. If the judgment was the property of the mining company, and if appellees had no enforceable claim to any part thereof, the re
The judgment against Ogle and Hubbard was for $18,725, and was to be paid to the clerk of the court, who was directed to pay $1,000 thereof to appellees, and the balance to the treasurer of the company. The judgment further provided that on failure to pay within the time named, execution should issue. The judgment of affirmance of the Appellate Court was vacated by the appeal to the Supreme Court, where the appeal was dismissed. At the time of the release, the judgment of the Pike Circuit Court was in full force, unreversed and unappealed from. Whether the judgment was right or wrong is of no present concern, if the court had jurisdiction to hear and determine the cause and make the allowance. The power to decide implies the power to decide wrongly as well as rightly; otherwise, there would be no reason for appellate tribunals. The controlling question therefore, is, Had the court jurisdiction to award counsel fees and provide for the payment of the same out of the proceeds of the judgment? If the court had such jurisdiction, the award cannot now be questioned collaterally.
It will be recalled that the original action was a suit in equity by Gilmore, a minority stockholder, to recover for the corporation a large sum of money owing by Ogle and Hubbard, who controlled the corporation. The judgment is not seriously challenged, except as to the award of counsel fees, and then only to the extent that there was no fund in the custody of the court out of which the allowance could be made. The question, as presented by the facts before us, is not free from doubt, but we think the rule
We think it clear that in an equitable proceeding by a minority stockholder to require those in control of the affairs of a corporation to restore to it property or money wrongfully withheld, the court in its decree may provide, that plaintiff be reimbursed, out of the fund recovered, for his costs, charges and counsel fees; and we fail to see any substantial difference between an action of this kind and one brought by a receiver for the same purpose, in which the power of the court to make such allowance is undoubted. 3 Cook, Corporations (6th ed.) §879; Trustees v. Greenough (1881), 105 U. S. 527, 26 L. Ed. 1157; Fox v. Hale & Norcross, etc., Mining Co. (1895), 108 Cal. 475, 41 Pac. 328; Kimble v. Board, etc. (1904), 32 Ind. App. 377, 66 N. E. 1023.
It has been held by the United States Supreme Court, as well as by this court, that in an action where an allowance may properly be made to the complainant On account of attorneys’ fees, the same may be made directly to the attorneys. Central R., etc., Co. v. Pettus (1885), 113 U. S. 116, 124, 5 Sup. Ct. 387, 28 L. Ed. 915; Traylor v. Richardson (1891), 2 Ind. App. 452, 28 N. E. 205. In Central R., etc., Co. v. Pettus, supra, the court said: “When an allowance to the complainant is proper on account of solicitors’ fees, it may be made directly to the solicitors themselves, without any application by their immediate client.”
Traylor v. Richardson, supra, was an action for divorce, in which fees had been allowed and ordered paid direct to counsel pendente Ute. Subsequently the case was dismissed without decree. The defendant did not pay the counsel fees awarded, and a separate action was bi'ought to recover the same. The judgment of the trial court for the
There was no error in sustaining appellees’ demurrer to the separate answers of appellants, and, for the same reasons, there was no error in overruling the separate motions to modify the judgment.
The judgment is therefore affirmed.
Note. — Reported in 99 N. E. 426. See, also, under (2) 3 Cyc. 508; (3) 31 Cyc. ISO; (4) 26 Cyc. 396; (5) 10 Cyc. 500; (C) 4 Cyc. 997. As to pleas in abatement, on ground of prior suit pending when the two suits vary as to parties, see 82 Am. St. 593. As to attorneys’ fees as an element of damage, see 8 Am. St. 158.