Nemeth v. Trumbull

FRIEDMAN, J.

Defendant Arthur L. Trumbull appeals from a judgment taken against him and others after his default had been entered, Trumbull, Pankost, Blackburn and plaintiff Nemeth entered into a contract for the sale of land in which they had common interests and for a division of the profits by specified percentages. The land was sold. On December 30, 1960, Nemeth filed a complaint “for accounting, declaratory relief, and damages,” naming the other three parties as defendants. The complaint alleged that the property was sold to various

purchasers;

that defendant Pankost had collected payments from the purchasers in amounts not known to the plaintiff; that Pankost had collected money as trustee for plaintiff and the other defendants and had refused and failed to account for said sums. The complaint stated “That defendants E. M. Blackburn and Arthur L. Trumbull are named herein only for the purpose of naming all parties who have an interest in said property and neither of said defendants have

[sic]

collected any of the monies due plaintiff.”

The prayer sought judgment against Pankost requiring him to account to Nemeth for all monies received under the contract, that Nemeth have judgment against Pankost for any sums found due, that a receiver be appointed to receive and distribute to the parties all future payments in proportion to their ownership interests, and for “declaratory relief and the court declare the right and duties of plaintiff and defendants herein .. . and such other and further relief as the court deems just and proper. ’ ’

Trumbull was served but did not answer the complaint and his default was entered on August 4, 1961. Later the action was dismissed as to Blackburn. Pankost filed an answer, the case went to trial, and judgment in favor of plaintiff Nemeth was entered on June 13, 1962. The judgment directed division between Nemeth and Pankost of a specified amount in a bank deposit. It then provided: “The remaining balance of funds on deposit in said bank

or in possession of defendant

Arthur L. Trumbull are to be divided as follows, to wit:

(a) 54 1/3% to plaintiff Vincent 0. Nemeth ;

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