DocketNumber: No. 18,608
Citation Numbers: 128 Ind. App. 1
Judges: Bowen, Crumpacker, Royse
Filed Date: 6/27/1956
Status: Precedential
Modified Date: 7/24/2022
In the court below the Farmers State Bank of Valparaiso, Indiana, in 1942, filed a civil ac
Thereafter, in 1945, the appellees in this cause, Cammie Baum and four others, filed a petition to intervene and to be substituted as parties plaintiff, and were permitted to do so over appellant’s objections. The appellant entered a special appearance to appellees’ petition to intervene, and objected thereto, prior to the court’s ruling permitting such parties' to be substituted as parties plaintiff. The grounds of objection were that if said petition was granted the petitioners would be completely substituted as parties plaintiff in the place and stead of the Farmers State Bank of Valparaiso, and that such substitution would constitute an attempt to bring a new cause of action against the appellant, and that thereafter it would not be the same cause of action as commenced by the original complaint, and for the further reason that certain of the bonds sued upon in said original complaint were then barred by the statute of limitations.
After appellees’ petition to intervene was granted the appellees- filed a second amended complaint in which they asserted ownership of certain bonds and coupons, and sought judgment thereon, and in the second paragraph of said second amended complaint they claimed to be the owners of one of said bonds and sought to represent all other owners and holders of bonds issued for the construction of said sewer, and sought a judgment on behalf of all of them as a class.
The demurrer was overruled and the appellant filed an answer to the second amended complaint of admission and denial and setting up the statute of limitations and alleging there was no joint interest in the rights of action of each separate plaintiff with those of any other plaintiff; that the plaintiffs are estopped from bringing the suit by reason of an election of remedies in bringing a previous foreclosure action on certain bonds. To this answer the appellee filed replies.
Appellant asked for special finding of facts and conclusions of law and the court found the facts specially and stated its conclusions of law thereon in favor of appellees.
The appellant filed its motion for a new trial, grounds of which motion were that the decision of the court was not sustained by sufficient evidence and was contrary to law; that each of the amended special findings were not sustained by sufficient evidence; that the court erred in admitting into evidence over the objection of appellant a written instrument purporting to be an audit of roll No. 251 on the ground that there was a misjoinder of causes of actions on the second paragraph of complaint based upon a class action. At the trial of this cause the appellees elected to proceed on the second paragraph of the second amended complaint as to the class action.
The court overruled appellant’s motion for a new trial and this appeal followed.
The appellees, however, urge that the record shows that in another action, which was an assessment foreclosure action in which the Farmers State Bank of Valparaiso and the defendant city were parties, there was an adjudication that said Bank owned said bonds on said assessment roll on October 20, 1942, which was some six months after the filing of the original complaint by the Farmers State Bank in the instant case. However, such facts asserted by the appellees cannot relieve them of the responsibility of alleging and proving in the instant case that the Bank, at the time the original complaint was filed, had the right to maintain the present class action, and such adjudication in the other proceeding some six months after the filing of such complaint cannot be accepted by this court as an adjudication that such Bank owned or held any bonds at the time of the filing of the original complaint.
Since the record in the instant case fails to show that the Farmers State Bank, at the time it filed the original complaint, had a right to represent the unnamed bond holders, the finding and judgment of the court below was contrary to law and the court erred in overruling appellant’s motion for a new trial.
By reason of the conclusions reached herein, it is unnecessary to pass upon other specifications of error.
Judgment reversed with instructions to sustain the appellant’s motion for a new trial.
Crumpacker, P. J., concurs with opinion.
Royse, J., dissents with opinion.