Continental Clay & Mining Company v. Bryson

• Decision Date: 17 May 1907
• Docket Number: 20,932
• Citation: 81 N.E. 210,168 Ind. 485
• Court: Indiana Supreme Court
• Parties: Continental Clay & Mining Company v. Bryson

81 N.E. 210

168 Ind. 485

Continental Clay & Mining Company v. Bryson

No. 20,932

Supreme Court of Indiana

May 17, 1907

From Clay Circuit Court; Presley O. Colliver, Judge.

Suit by John G. Bryson against the Continental Clay & Mining Company. From an interlocutory order appointing a receiver defendant appeals.

Reversed.

S. M McGregor, for appellant.

A. W Knight and George A. Knight, for appellee.

OPINION

Monks, J.

This is an appeal from an interlocutory order appointing a receiver without notice. The complaint was filed and summons issued September 8, 1906. On the same day the judge of the court below, at chambers, without notice to or appearance of appellant, appointed a receiver of all its property rights, credits and effects.

Appellee has filed in this court an affidavit showing that, after this appeal was perfected, appellant filed in the court below, on October 8, 1906, "its written motion to vacate and set aside the interlocutory order appealed from, and discharge the receiver, and that said motion is still pending in the court below undetermined, and involves the same question as the one in this appeal." Appellee claims that these facts show "a waiver of appellant's right further to prosecute this appeal." It has been held by this court that on an appeal from an interlocutory order appointing a receiver, no questions will be considered except such as immediately led to the appointment of the receiver, leaving all other matters in the court below. Wabash R. Co. v. Dykeman (1892), 133 Ind. 56, 57, 32 N.E. 823, and cases cited.

No right of appeal is given from a ruling of the court overruling a motion to set aside and vacate an interlocutory order appointing a receiver. Wabash R. Co. v. Dykeman, supra, at page 64. When such a motion is made, overruled, and excepted to, the appeal is not from the ruling on the motion, but from the order appointing the receiver. State v. Union Nat. Bank (1896), 145 Ind. 537, 544, 545, 57 Am. St. 209, 44 N.E. 585.

If filing such motion before an appeal from an interlocutory order appointing a receiver without notice does not waive the right to appeal from such order, certainly the filing of such motion after the appeal is perfected does not waive the right to prosecute such appeal. The statute provides: "Receivers shall not be appointed, either in term time or vacation, in any case, until the adverse party shall have appeared, or shall have had reasonable notice of the application for such appointment, except upon sufficient cause shown by affidavit." § 1244 Burns 1901, § 1230 R. S. 1881 and Horner 1901. It is insisted by appellant that the verified complaint does not state facts sufficient to authorize the appointment of a receiver without notice.

The only evidence given at the ex parte hearing for the appointment of the receiver was the verified complaint, which reads as follows: "John G. Bryson complains of the Continental Clay & Mining Co., and says that said defendant is a corporation, carrying on a general clay and coal mining business, in pursuance of the laws of the State of Indiana, and having an office and agency for the transaction of such business in the county of Clay; that he the plaintiff herein, is a stockholder in said corporation; that the business of said corporation has been conducted in such a loose, careless and reckless manner as that there now exists an outstanding indebtedness against said corporation of more than $ 50,000, as plaintiff is informed and believes; that the receipts accumulated by said corporation are all paid out in salaries and in the carrying on of the business of said corporation, without any corresponding benefits or profits to the stockholders, including plaintiff herein; that the business of said corporation is now, and for a long time past has been, a losing business, and there is no prospect that it will or can be conducted in the future, under the present management, on a paying basis; that said corporation is now unable and without funds to meet its indebtedness and is insolvent, or at least in imminent danger of becoming insolvent. Plaintiff now further shows that the board of directors of said corporation have authorized one Legnard, its president, to dispose of the assets of said corporation; that said Legnard is a nonresident of the State of Indiana, and if he is permitted to turn the assets of said corporation into cash or available securities he will, in all probability, take the same outside the jurisdiction of this court; that said Legnard is the principal stockholder in said corporation, and plaintiff believes that he would not dispose of the assets of the corporation to the best advantage of the minority stockholders; that said corporation is now threatening to sell the property of the corporation, over the protests and objections of this plaintiff. Wherefore, plaintiff prays for an accounting to him by said corporation and that the court, upon proper and sufficient hearing and proof, order that the affiairs of said corporation be wound up and dissolved, that the proceeds be applied to the extinguishment of its debts, and that the surplus, if any, be divided among the stockholders. And plaintiff further prays the court that to that end a receiver be appointed, without...