195 S.W. 412 (Ky.App. 1917), Adams v. Gardner
|Citation:||195 S.W. 412, 176 Ky. 252|
|Opinion Judge:||MILLER, J.|
|Party Name:||ADAMS v. GARDNER, JUDGE.|
|Attorney:||N. P. Adams and M. F. Patrick, both of Salyersville, for appellant. W. C. Marshall, of Frankfort, for appellee.|
|Case Date:||June 08, 1917|
|Court:||Court of Appeals of Kentucky|
Appeal from Circuit Court, Magoffin County.
A. H. Adams was adjudged guilty of contempt by D. W. Gardner, Judge, and he appeals. Reversed.
In May, 1916, B. J. Elam was appointed receiver of the Salyersville Gas Company in the action of Continental Supply Company v. Salyersville Gas Company, then pending in the Magoffin circuit court.
At the October, 1916, term of that court, Judge D. W. Gardner, the presiding judge, entered an order upon the motion of the Continental Supply Company directing Elam as receiver to make a full and complete report and settlement before the master commissioner. The master filed his report on November 17, 1916, and both the Continental Supply Company and Elam filed exceptions thereto. On November 27, 1916, the court entered this order:
"It is ordered by the court that B. J. Elam, after inspection of settlements be, and he is, discharged as receiver of the Salyersville Gas Company."
On the same day John Salyer was appointed receiver for the Salyersville Gas Company, and he qualified as such, as required by law.
There is nothing to show that Elam had
any notice of the action of the court discharging him as receiver, and we understand it is not contended that he did have notice thereof. This is borne out by the fact that on the same day the court entered another order which recited that Elam had tendered his resignation as receiver, at a former day of that term of the court, and that the court accepted the same and appointed Salyer as receiver in Elam's stead; and the order further directed Elam to turn over to Salyer, his successor, all the property of every kind in his hands belonging to the Salyersville Gas Company.
Presumably this last order was entered upon the theory that the previous order of the same day discharging Elam, without notice and an opportunity to be heard, as well as the appointment of Salyer, was premature and erroneous. There is nothing in the record to show that Elam had any notice of the order last above referred to; but, as it recites that the court acted upon Elam's resignation, it was entered evidently upon the theory that no notice to Elam was necessary.
On December 1st Salyer filed his affidavit showing that he, as receiver, had demanded of Elam the property of the Salyersville Gas Company, and that Elam had refused to surrender it. At the same time Elam appeared in court, and, having announced that he had not tendered his resignation, the attorney for the plaintiff asked his removal; whereupon the court gave Elam time until 2 o'clock of that day to show that he had not presented his resignation, and why he should not be removed as receiver. Elam filed a demurrer to the rule against him, and the demurrer was overruled on the same day. Thereupon Elam made a motion to set aside and vacate the order appointing Salyer as receiver and directing Elam to deliver to Salyer the property belonging to the Salyersville Gas...
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