Muller v. State Life Ins. Co.

on his first paragraph of counterclaim. The contract and policy of insurance are both made parts of the counterclaim. It appears that policy number 15,619 was issued to appellant by appellee February 25, 1898, and that the annual premium paid was $72.90, which carried the insurance to February 25, 1899. The special contract states that this premium paid on this policy was a part of its consideration. When we look to both the contract and the policy, as we must, it is seen that the money appellant is seeking to recover in this action is the premium paid on this policy. Even if the contract was invalid, the policy is not tainted with its invalidity because the policy makes no reference to the contract. During the year the policy was in force appellee could not have escaped liability on the policy because of the contract. If the terms of the policy had been complied with, and there had been a loss, the company would have been liable. The insurance was valid, and the contract was fully executed by both parties before the bringing of this action. Appellant received valid insurance for one year, and the money he now seeks to recover was the premium paid for that insurance.

The second paragraph of counterclaim alleges that appellee, without appellant's knowledge or consent, on July 13, 1899, attempted to reorganize the company under an act approved February 10, 1899 (Acts 1899, p. 30), and had transferred all its assets to the company as reorganized and which assumed the name of which appellant was a member, that he never consented to such reorganization, and thereafter, and prior to bringing this action, he repudiated the insurance, returned the policy, and demanded the return to him of $72.90, the premium paid by him, and asks that so much as may be necessary of this sum be set off against any amount found due by reason of the note sued on, and that he have judgment for the balance.

It is not necessary to decide what the effect of the complete reorganization of a company under a different name,

Tilden v. Whitely Malleable Casting Co.

in fact the organization of an entirely new corporation out of the old, might be as to the rights of the policy-holder, or a stockholder in the old company, who did not consent to such reorganization.

It is plain from $§§27 and 28 of the act approved February 10, 1899, that it was not the intention of the legislature that there should be necessarily a new company formed, but that the old company, without changing its corporate identity, or in any manner affecting its corporate rights or liability, might, by complying with certain requirements, be authorized to do business in the future in accordance with the provisions contained in that act. (Acts 1899, p. 40). So far as the pleading shows, the company is the same as before the reorganization, and is not a new corporation which has taken the place of an old one that has ceased to exist. The demurrers were properly sustained. Judgment affirmed.

TILDEN ET AL. v. WHITELY MALLEABLE CASTING

APPEAL.—

COMPANY.

[No. 3,790. Filed June 4, 1901.]

·Assignment of Error.-Causes for New Trial.— Assignments of error, (1) "that the court erred in interrupting and stopping the trial of the case while the evidence was being given," (2) in interrupting and stopping the trial of said cause and referring the same to a master commissioner," (3) "overruling appellant's objection to the master commissioner being allowed to fix the place of taking the evidence," (4) "in overruling the appellant's objection to the second report of the master commissioner," are all causes for a new trial, and cannot be independently assigned as

error.

From Grant Circuit Court; J. L. Custer, Judge.

Action by Whitely Malleable Castings Company against. Adelbert L. Tilden, and others, for work, labor and material. From a judgment for plaintiff, defendants appeal. Affirmed.

Tilden v. Whitely Malleable Casting Co.

A. E. Steele and J. A. Kersey, for appellants.

R. S. Gregory, A. C. Silverburg and O. J. Lotz, for appellee.

HENLEY, J.-This action was commenced by appellee to recover for work and labor done and for material furnished appellants. The complaint was in two paragraphs. The answer was a general denial. The pleadings are not questioned. The cause was by the agreement of parties submitted to the court for trial without the intervention of a jury. The trial had proceeded to the examination of the second witness when the court upon its own motion referred the cause to a master commissioner to hear the evidence and report his conclusions of fact to the court. Appellants objected to this action of the court and also to the order of the court directing the master to proceed to take evidence at such time and place as he might think best. The master qualified and took the evidence in said cause at the office of the appellee in the city of Muncie. When the report of the master was filed, it was objected to by appellants on the ground that the proceedings were held out of Grant county and were coram non judice. Appellants' objections to the report were sustained, and thereupon the master served another notice upon all the parties that the hearing would be held in Marion, Grant county, Indiana. The evidence was heard and the findings of fact made, returned, and filed with the court, and upon which the court rendered a judgment in favor of appellee.

"(1)

Appellants have assigned the following errors: The court erred in interrupting and stopping the trial of said cause while the evidence was being given; (2) the court erred in interrupting and stopping the trial of said cause and referring the same to a master commissioner; (3) the court erred in referring said cause to a master commissioner when the trial thereof by the court had been begun and was in progress; (4) the court erred in overruling appellants' objection to the interruption and stopping of the trial

Severin v. Robinson.

of said cause and referring the same to a master commissioner; (5) the court erred in overruling the appellants' objection to the master commissioner being allowed to fix the place of taking the evidence; (6) the court erred in overruling the appellants' objection to the second report of the master commissioner.”

It will be observed that it is not assigned as error that the court erred in overruling appellants' motion for a new trial. In fact the record shows that no motion for a new trial was made. All the alleged errors assigned by appellants are causes for a new trial, and can not be independently assigned as error in this court. They all fall under subdivisions one and eight of $568 Burns 1894, relating to motions for new trials and causes therefor. It follows that no question is presented to this court by the record and assignment of

errors.

Judgment affirmed.

SEVERIN ET AL. v. ROBINSON, TRUSTEE IN BANKRUPTCY

OF DAVIS ET AL.

[No. 3,797. Filed June 4, 1901.]

BANKRUPTCY.-Complaint to Set Aside Judgments.—A complaint by a trustee in bankruptcy to set aside judgments against the bankrupt alleged that the defendant's judgments were taken before a justice of the peace and transcripts filed on August 15, 1898, and that the judg

gment defendant-filed his petition in bankruptcy October 29, 1898, but did not allege that the suits were commenced within four months, nor that the existence and enforcement of the judgments would work a preference, nor that the judgment plaintiff had reasonable cause to believe that the defendant was insolvent or in contemplation of bankruptcy. Held, that the complaint was sufficient under §67f of United States bankruptcy law of 1899. pp. 56-61.

SAME.-Preference of Creditors.—Judgments.— Under the bankruptcy act (U. S. R. S. 1899, p. 845, §67f), enacting that all judgments obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him shall be void, in case he is adjudged a bankrupt, and the property affected by the judgments shall pass to

Severin v. Robinson.

the trustee as a part of the assets of the bankrupt, a creditor who obtains a judgment against an insolvent debtor within four months prior to the filing of a petition in bankruptcy by him does not obtain a preference over the other creditors of the bankrupt. pp. 57-61.

From Owen Circuit Court; G. W. Grubbs, Judge.

Action by John C. Robinson, as trustee in bankruptcy of James F. Davis, against Henry Severin and others, to set aside judgment liens. From a judgment for plaintiff, defendants appeal. Affirmed.

M. W. Hopkins, I. H. Fowler and T. G. Spangler, for appellants.

Willis Hickam, for appellees.

WILEY, P. J.—On December 15, 1898, the appellee, as trustee in bankruptcy of James F. Davis, filed his complaint against numerous persons, among others the appellants, to set aside preferential liens. His complaint contains the following allegations: "That James F. Davis filed his voluntary petition in bankruptcy on October 29, 1898, and was adjudged bankrupt, and the plaintiff selected his trustee in bankruptcy; that for more than a year prior thereto said Davis had been insolvent; that after he became insolvent, and within four months prior to his adjudication in bankruptcy, viz., on August 15, 1898, and after he had disposed of all of his property by fraudulent transfers, Davis suffered and permitted appellants to take judgments against him, they having at the time knowledge of his insolvency; that these judgments were taken before justices of the peace in Owen county, and on the same day transcripts were filed in the office of the clerk of the Owen Circuit Court, and all of the judgments were taken and suffered with the unlawful and fraudulent purpose of enabling the appellants to obtain. preferences of their said claims." The appellants filed answers to the complaint, in which they sought to uphold the judgment liens thus obtained, on the ground that they were obtained through adverse proceedings, and were therefore