Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

ministrators of the estate of Gustavus H. Voss, in an intervening petition to the court, alleged that soon after their appointment they had, as such administrators, deposited in the Fletcher & Sharpe bank about $40,000 of the funds of the estate for safe-keeping. They alleged that, at the time of receiving such fund, Fletcher & Sharpe had full notice that it belonged to the estate, and that the same was placed in their custody by the petitioners in their trust capacity, and they aver that the fund was so received by Fletcher & Sharpe. The petition alleges the subsequent insolvency of the bank, and the appointment of William Wallace as receiver, and that, as such receiver, he has the possession of its assets. It is shown that about $22,000 of the money so deposited remained in the bank at the time of its suspension. The petitioners aver that the receiver has in his possession a large amount of assets, consisting of bills receivable and choses in action, in which Fletcher & Sharpe had wrongfully invested the moneys so deposited by the petitioners. They ask that the court shall order the receiver to pay over to them the full sum of money so deposited, and yet remaining unpaid by the bank at the date of its suspension. An issue was made by a denial on behalf of the receiver, and upon a hearing the prayer of the petition was denied, and judgment rendered that the petitioners take nothing.

The question arises upon the evidence. There was no disagreement as to the material facts in the case. The funds were deposited in the bank, from time to time, to the credit of the petitioners. It may be assumed that the account was opened and continued on the books of the bank in the name of the petitioners, as administrators of the estate of Voss, although this does not very distinctly appear. It does appear, however, that Fletcher & Sharpe were notified, when the first deposit was made, that the funds thus deposited, and such as should thereafter be deposited by the petitioners, were and would be the funds of the estate, and a trust fund, and that no checks would be drawn upon it, except for the purposes of the estate, and that all checks would be signed by the petitioners as administrators. An ordinary bank-account of debit and credit was kept; the petitioners having the customary pass-book evidencing the amount of their deposits from time to time. When the bank suspended, the amount due the petitioners on their account was $22,042.52. There was a sufficient sum of money went into the hands of the receiver, when he took possession, to have paid the amount due the petitioners. The total amount of assets was about $500,000; the liabilities aggregated $1,500,000.

Upon this state of facts it is now argued that the petitioners were entitled to an order giving them a preference over other general depositors. Whether the loss to the fund occasioned by the suspension and insolvency of the bank will ultimately fall upon the petitioners is a question in no way directly involved in the decision of this case. The principles which determine the liability of trustees who become depositors of trust funds were considered, to some extent, in the case of Naltner v. Dolan, 8 N. E. Rep. 289, and cases cited. Nor does the case involve any question as to the right of the bank to appropriate the fund for an indebtedness due from the depositors, as in Bundy v Town of Monticello, 84 Ind. 119.

There are many cases in which the question has arisen as to the equitable rights of cestuis que trust to pursue a trust fund which has been misapplied or diverted by the trustee, or which the creditors of the latter are seeking to subject or appropriate to the payment of debts due them. The general doctrine is well established that equity will follow a fund through any number of transmutations, and preserve and protect it for the real beneficiary so long as such fund can be identified and followed. National Bank v. Insurance Co., 104 U. S. 54; Pennell v. Deffell, 4 De Gex, M. & G. 372; Frith v. Cartland, 2 Hem. & M. 417; Knatchbull v. Hallett, 13 Ch. Div. 696; Taylor v. Plumer, 3 Maule & S. 562; Farmers', etc., Bank v. King, 57 Pa. St. 202;

Van Allen v. American, etc., Bank, 52 N. Y. 1; Naltner v. Dolan, supra. The class of cases above cited are relied upon by the appellant for a reversal of the ruling below. The distinction between the cases relied on and the case being considered is obvious. Those were cases in which the aid of a court of equity was invoked by the rightful owners to preserve a trust fund from misappropriation by a trustee of his creditors. This is a case in which trustees, with others, have become general depositors in a bank which has become insolvent, and whose assets are now in the hands of a receiver for distribution among all its creditors according to law. The question is, do persons who become general depositors of trust funds in such manner as to create the relation of debtor and creditor between themselves and the bank in which the funds are deposited, stand upon a different level from other general depositors?

There is no question but that the fund was properly deposited. The propriety of the conduct of the trustees in making the deposit, or of the bank in receiving it, is not in dispute, nor does the evidence suggest any wrongful misappropriation or diversion of the fund either by the bank or the trustees. When deposits are received, unless they are special deposits, they belong to the bank as a part of its general funds, and the relation of debtor and creditor arises between the bank and the depositor. This is equally so whether the deposit is of trust money or funds which are impressed with no trust, provided the act of depositing is no misappropriation of the fund. If, in receiving a trust fund, a bank acted with knowledge that it was taking the fund in violation of the duty of the trustee, the rights of the cestui que trust might be different. In respect to such a case we decide nothing here. In this case, where no impropriety is imputed to the bank in receiving the money, it becomes the debtor of the petitioners, and its debt to them was of the same character as its debt to any other depositor, and must be paid in the same proportion. The rights of other creditors stand on a level with those of the petitioners, and are to be guarded and protected by the court with the same vigilance. McLain v. Wallace, 103 Ind. 563; S. C. 5 N. E. Rep. 911; National Bank v. Ellicott, 31 Kan. 173; S. C. 1 Pac. Rep. 593; Etna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82; Attorney General v. Insurance Co., 71 N. Y. 325; Bank of Republic v. Millard, 10 Wall. 152.

There was no error. The judgment is affirmed, with costs.

(108 Ind. 113)

TERRE HAUTE & L. R. Co. v. BISSELL.

(Supreme Court of Indiana. October 26, 1886.)

1. RAILROAD COMPANIES-USE OF STREETS-DAMAGES-PLEADING-INJURY DIFFERENT FROM THAT OF GENERAL PUBLIC.

In an action against a railroad company for damages caused by constructing and using railroad tracks along a street, part of which the plaintiff claims to own, a complaint which fails to show that the tracks were constructed and trains run on that part of the street owned by plaintiff, or that the grievances complained of were different from those sustained by the general public, is bad, on demurrer.1 2. EXCEPTIONS-BILL OF EXCEPTIONS-SIGNING RECORD.

Under Rev. St. Ind. 1881, 629, a bill of exceptions, presented to the judge for his signature within the time allowed, may become part of the record, although not actually signed and filed until after the expiration of such time.

Appeal from circuit court, Marshall county.

J. G. Williams, for appellant. McLaren & Packard, for appellee.

Howk, C. J. Errors are assigned here by appellant, the defendant below, calling in question the decisions of the circuit court in overruling (1) its de

1 See note at end of case.

murrer to the first paragraph of appellee's complaint; (2) its demurrer to the second paragraph of such complaint; and (3) its motion for a new trial.

This suit was commenced on the twenty-ninth day of September, 1884. In the first paragraph of his complaint appellee alleged that he then was, and for five years last past had been, the owner in fee-simple of lots numbered from 11 to 18, both inclusive, in Wilson's subdivision of outlot No. 18, in Merrill's addition to the city of Plymouth, in Marshall county; that such lots abutted on a public street of such city, known as First street, 60 feet wide, for the distance of - hundred feet along the west line of such street; that, as the owner of such lots, appellee was also the owner in fee-simple of the west 30 feet of such street immediately in front of his lots, extending from the front line of such lots to the center or middle line of such street; that, during such five years, appellee had made valuable and lasting improvements, of the value of $5,000, on such lots, in the erection of a dwelling-house wherein he and his family resided; that, within the last two years, ingress and egress to and from appellee's lots, and his residence and other buildings thereon, had been obstructed and prevented, on the east side thereof, by two railroad tracks constructed upon and along said street, and in constant use by appellant, in moving and transporting its cars and locomotives on and along such tracks on said street, in front of and near to appellee's lots and residence; that by the construction and constant use of such railroad tracks on said street, in front of and near to appellee's residence property, appellant had caused such an obstruction to the free use of said property as essentially to interfere with the comfortable enjoyment of life therein, and the emission of large volumes of smoke, cinders, dust, and other offensive matter from appellant's locomotives, which were constantly moving over said tracks, was offensive to appellee and his family; that within two years last past appellant unlawfully, and without right, and without having first caused appellee's damages to be assessed and tendered to him, and without his consent, entered upon and laid down two railroad tracks on that portion of said street lying in front, or on the east side, of appellee's said lots, and maintained and used such tracks for the passage of locomotives and cars thereon, and all without his consent. The second paragraph of the complaint does not differ materially from the first paragraph in its statement of the facts constituting appellee's supposed cause of action against the appellant.

To each of the paragraphs of appellee's complaint, appellant's demurrer, for the alleged insufficiency of the facts therein to constitute a cause of action, was overruled by the court. It is earnestly contended by appellant's learned counsel that the court below erred in each of these rulings. It will be observed that, while appellee carefully alleged that he was the owner in feesimple of the west half of First street, in the city of Plymouth, extending from the front or east line of his lots eastwardly 30 feet, to the middle or center line of such street, yet he nowhere averred, in either paragraph of his complaint, that, in the construction and use of its two railroad tracks on such street, appellant had entered upon, occupied or used, by either of such tracks, that part of such street of which he claimed to be such owner. For the want of such an averment, appellant's counsel earnestly insist that each paragraph of appellee's complaint was insufficient to withstand its demurrer thereto.

This objection seems to be well taken as to each paragraph of the complaint. It must be assumed, in the absence of any averment to the contrary, that appellant had entered upon and laid down its two railroad tracks, within the limits of First street, with the consent and permission of the common council of the city of Plymouth. If such city was incorporated under the general law of this state for the incorporation of cities, as we must assume it was, in the absence of any showing to the contrary, by the express provisions of that law, (section 3161, Rev. St. 1881,) in force since March 14, 1867, its common v.9N.E.no.2-10

council had exclusive power over its streets, alleys, and highways. It is settled by our decisions that the power of a city, incorporated under our general laws for the incorporation of cities, over its streets and alleys, includes or extends to many other uses than those of ordinary travel on public highways. Thus, in Cox v. Louisville, etc., R. Co., 48 Ind. 178, it is said: "So far as the highway, street, or easement is concerned, as the municipality has complete control thereof, it may, we presume, make or authorize any use of the street which will not essentially change and divert it from its intended use as a public highway. But this power of the common council of a city, over a street as a highway, cannot, of course, affect the rights of the individual owner of the fee in the soil over which the highway or street passes." This right of the individual, according to the case of Protzman v. Indianapolis, etc., R. Co., 9 Ind. 467, is as much property as the lot itself. As was said in Common Council, etc., v. Croas, 7 Ind. 9, it is a right distinct from the claim of the public, which even the legislature could not take away, unless to appropriate to a public use; "in which case, of course, compensation must be made." City of Logansport v. Shirk, 88 Ind. 563; Baltimore, etc., R. Co. v. North, 103 Ind. 486; S. C. 3 N. E. Rep. 144.

Conceding, in the case in hand, that appellee was the owner in fee-simple of First street, in the city of Plymouth, from the eastern or front line of such lots to the middle line of such street, we cannot presume, in the absence of averment to that effect in aid of the averments of appellee's complaint, that in the construction of its two railroad tracks, or in its use thereof by the passage over the same of its cars and locomotives, within the limits of First street, appellant had entered upon, occupied, or used that part of such street owned in fee-simple by the appellee. The grievances of which appellee complained were not shown, by the allegations of either paragraph of his complaint, to be injuries to that part of First street whereof he claimed to be the owner in feesimple. In the absence of any showing that the tracks of appellant's railroad were located, constructed, and used on and over that part of First street of which appellee claimed to be the owner in fee-simple, the grievances whereof he complained, caused or occasioned by the occupation and use of First street for railroad purposes, were such incidental injuries merely as he sustained in common with the public, and not different in degree or character from those sustained by the public generally. For such injuries appellee cannot maintain an action against the appellant. McCowan v. Whitesides, 31 Ind. 235; Cummins v. City of Seymour, 79 Ind. 491; Matlock v. Hawkins, 92 Ind. 225; Dwenger v. Chicago, etc., Ry. Co., 98 Ind. 153.

We are of opinion, therefore, that the trial court erred in overruling appellant's demurrer to each of appellee's complaints.

Under the alleged error of the court in overruling the motion for a new trial, it is claimed by appellant's counsel that the court clearly erred in giving the jury, at appellee's request, a certain instruction. The point is made by appellee's counsel, and is relied upon apparently with much confidence, that the bill of exceptions, containing the evidence on the trial and the instructions given and refused by the court, was not filed within the time granted, and therefore is not properly a part of the record. It is shown by the transcript before us that the motion for a new trial was overruled, and judgment rendered, on the fourth day of April, 1885, and appellant was then given 60 days from that day "to present its bill of exceptions herein to the honorable judge of the Marshall circuit court;" that within such 60 days, towit, on the first day of June, 1885, appellant presented its bill of exceptions to the judge aforesaid; that thereafter, on the thirtieth day of June, 1885, such bill was "signed, sealed, and made a part of the record herein," by the judge of such court; and that on the next day, to-wit, July 1, 1885, such bill of exceptions, signed and sealed as aforesaid, was duly filed in the court below.

It will be seen from the foregoing abstract of the record that while appellant's bill of exceptions was prepared and presented to the judge below, for his signature, within the 60 days allowed by the court, yet it was not in fact signed by such judge and filed until nearly one month after the expiration of such 60 days. Under the provisions of section 346 of the Civil Code of 1852, and the rules of practice founded thereon, it is very clear that the bill of exceptions so signed and filed would have constituted no proper part of the record of this cause, on an appeal to this court. Dunn v. Hubble, 81 Ind. 489. But the Civil Code of 1881 made a radical change in the practice theretofore existing, in relation to bills of exceptions, in so far, at least, as the filing thereof is concerned. In section 629, Rev. St. 1881, which is section 406 of the Civil Code of 1881, it is provided, in effect, that when the record does not otherwise show the decision excepted to, or the grounds of objection thereto, "the party objecting must, within such time as may be allowed, present to the judge a proper bill of exceptions, which, if true, he shall promptly sign, and cause it to be filed in the cause; if not true, the judge shall correct, sign, and cause it to be filed without delay." It is also provided that "the date of the presentation shall be stated in the bill of exceptions;" and, further, that "delay of the judge in signing and filing the same shall not deprive the party objecting of the benefit thereof." Under these provisions of the Code of 1881, all that the "party objecting" is required to do is to present to the judge his proper bill of exceptions within the time allowed by the court. When this has been done by the objecting party, the judge must sign, or must correct and sign, and must then file, such bill of exceptions "without delay," and, "when so filed," the statute says "it shall be a part of the record." It is expressly declared, in terms so plain that they cannot possibly be misunderstood, that "delay of the judge," in signing and filing such bill of exceptions, "shall not deprive the party objecting of the benefit thereof."

In Creemer v. Sirp, 91 Ind. 366, it was held, in effect, that when time is allowed within which to prepare and present a bill of exceptions, and it is shown by such bill that it was presented to the judge within the time allowed, the bill of exceptions will, under the provisions of section 629, Rev. St. 1881, constitute a proper part of the record, on an appeal to this court, although it may not have been filed until after the expiration of the time allowed. So it was held, also, in Hamm v. Romine, 98 Ind. 77. In support of their position, appellee's counsel cite and rely upon La Rose v. Logansport Nat. Bank, 102 Ind. 332, S. C. 1 N. E. Rep. 805; but what was there said, in seeming conflict with our previous cases, and what we here decide, was subsequently explained and modified in the recent case of Robinson v. Anderson, 106 Ind. 152; S. C. 6 N. E. Rep. 12.

Where it is shown by the bill of exceptions that it was presented to the judge for his signature within the time allowed by the court, and the record shows that such bill has been filed either before or after the expiration of such time, under the provisions of section 629, supra, such bill of exceptions will constitute a proper part of the record of the cause, on an appeal to this court. "When so filed, it shall be a part of the record," is the language of the statute. Louisville, etc., Ry. Co. v. Harrigan, 94 Ind. 245; Pratt v. Allen, 95 Ind. 404; Shulse v. McWilliams, 104 Ind. 512; S. C. 3 N. E. Rep. 243.

In the case in hand, as we have seen, the date of the presentation of the bill of exceptions, as stated therein, was within the time allowed by the court; and it was shown by the record that such bill of exceptions was duly filed in the court below on the first day of July, 1885. It follows, therefore, from what we have said, that the bill of exceptions, containing the evidence and the instructions given and refused, constituted a proper part of the record before us on this appeal.

We have said thus much upon the question of practice presented, because appellee's counsel have seemed to rely with implicit confidence, in argument,

« ΠροηγούμενηΣυνέχεια »