Opinion
No. 14,553.
Filed November 18, 1932.
From Marion Superior Court (A-55996); William A. Pickens, Judge.
Action by Western Newspaper Union against Edward E. Wood and others. From a judgment for defendants plaintiff appealed. Reversed. By the court in banc.
A.J. Rucker, B. Howard Caughran, James A. Collins, and Andrew Jacobs, for appellant.
This is an appeal from a judgment for appellees rendered in a suit upon a complaint in proceedings supplemental to execution. All defendants answering filed a general denial. Following the trial the court rendered a judgment that the appellant take nothing. The error assigned here is the overruling of the motion for a new trial, the reasons therein being that the decision of the court is not sustained by sufficient evidence and is contrary to law.
The appellant claims that realty and personalty included in a so-called trust agreement is subject to execution because the so-called trust is in fact and in law not a truth; that even if it can be said to be a trust, it is a trust for the benefit of the debtor and void by statute.
After an examination of the trust agreement in question we are of the opinion (without deciding the ultimate legal effect of the instrument that the appellant has made at least a prima facie showing of reversible error in its contention that the so-called deed of trust was not a trust at all but a partnership wherein the so-called trustees were merely the agents of the so-called cestui que trustents. Howe v. Chmielinski et al. (1921), 130 N.E. 56.
The appellees have lent their implied consent to this prima facie showing by failing to file a brief, and therefore the judgment must be reversed.
The judgment is reversed and it is so ordered.