Bookout v. Foreman

• Decision Date: 14 December 1926
• Docket Number: 24,726
• Citation: 154 N.E. 387,198 Ind. 543
• Parties: Bookout et al. v. Foreman
• Court: Indiana Supreme Court

154 N.E. 387

198 Ind. 543

Bookout et al. v. Foreman

No. 24,726

Supreme Court of Indiana

December 14, 1926

1. RECEIVERS.---Receiver should not be appointed for real estate fraudulently conveyed without giving notice to the owner where it did not appear that he was a nonresident or that plaintiff's interest could not be protected by restraining order.---A receiver should not be appointed for real estate without giving notice to the owner thereof although the former owner had transferred it to his wife with the intent to avoid payment of a note and she, with like intent, transferred it to the holder thereof at the time of the application for a receiver, where it did not appear that said holder was a nonresident, or that plaintiff's interest could not be properly protected by a restraining order. p. 546.

2 RECEIVERS.---When receiver can be appointed without notice.---A receiver should not be appointed without notice except where an emergency arises rendering interference necessary to prevent waste, destruction or loss of property which could not have been avoided by issuing a restraining order until notice could be given. p. 546.

From Delaware Circuit Court; Clarence W. Dearth, Judge.

Action by V. A. Foreman against William A. Bookout and others. From an order appointing a receiver without notice, the defendants appeal.

Reversed.

W. A Thompson, for appellants.

Lindsey & Davis, for appellee.

OPINION

Ewbank, J.

This is an appeal from an order appointing a receiver, without notice, to collect the rents from certain real estate in the city of Muncie to which appellant Bookout holds title by conveyance from appellant Helen Kubasiak and appellant Frank Kubasiak, her husband, the last named of whom was alleged to be indebted to appellee in the sum of $ 780, with interest and attorney fees, upon a promissory note executed by him, appellee being the plaintiff and the three appellants the defendants in the court below. Appellant Bookout gave a bond in the amount required of the receiver and perfected an appeal within less than ten days, (§ 1302 Burns 1926, § 1231 R. S. 1881), naming the other defendants as coappellants.

The first paragraph of the complaint alleged the execution, by Frank Kubasiak, of a promissory note for $ 780, with interest and attorney fees, payable to appellee, the plaintiff below and that it was due and unpaid; that, at the time it was executed, Frank Kubasiak was the owner in fee simple of the real estate in question, of the value of $ 15,000, and of certain personal property situated thereon of the value of $ 1,000; that he conveyed the real estate to his wife, Helen Kubasiak, the same day, with the intent to cheat, hinder and delay his creditors, and to avoid paying said note, and that his wife accepted the conveyance with full knowledge of his said purpose, and that there was no consideration for such conveyance; that thereafter, Helen Kubasiak, for the purpose and with the intent to cheat, hinder and delay the creditors of herself and her husband, and to avoid payment of said note, conveyed the real estate to Bookout, and that he received and accepted the conveyance with full knowledge of their fraudulent purpose; and that Mrs. Kubasiak has sold or attempted to sell her husband's said personal property to Bookout with the purpose and intent to cheat, hinder and delay his creditors, and to avoid payment of the note, and that Bookout gave no consideration for the real estate or personal property and knew that there was due and owing plaintiff on the above described note the...