Fagan v. Clark, 350
| Citation | 148 N.E.2d 407,238 Ind. 22 |
| Decision Date | 11 March 1958 |
| Docket Number | No. 350,No. 29633,350,29633 |
| Parties | Ralph T. FAGAN, as President; Mildred Gianini, as Secretary-Treasurer; Charles Naddeo, as 1st Vice-President; Lawrence Palacios, as 2nd Vice-President; Ray Nickelson, as 3rd Vice-President; E.L. Abercrombie, as 5th Vice-President; Michael J. Minaden, as 6th Vice-President; W.S. Gross, as 7th Vice-President; Lola Chantler, as Trustee; John F. Donovan, as Trustee, and Bartow Thomas, as Trustee; and each as members of and as representatives of all the members of Laundry, Dry Cleaning and Dye House Workers International Union heretofore known as Laundry Workers International Union, Appellants, v. Vera CLARK, Ann Lucas, Barbara Orkmon Lee, and Marie Love, Theodore Williams, alias Ted Williams, as President of Local Unionof the Laundry, Dry Cleaning and Dye House Workers International Union, heretofore known as Laundry Workers International Union, Orville Chenault, as Vice-President; Julia Hinias, as Financial Secretary-Treasurer, Charles Walker, as Sergeant-at-Arms, Murle Whitt, as Executive Board Member, Mary Irons, as Executive Board Member, Mamie Jarman, as Executive Board Member, Bernice Westbrooks, Gloria Chambers, Rosemary Noble, Geneva Feat, each individually and each as members of Local Unionof the Laundry Dry Cleaning and Dye House Workers International Union heretofore known as Laundry Workers International Union and each as a representative of all the members of the said Local Union; each of the above as members of the aforesaid International Union and each as a representative of all the members of the aforesaid International Union; Indiana National Bank, American Fletcher National Bank, Fidelity Bank & Trust Company, Merchants National Bank & Trust Company, Peoples Bank & Trust Company, Appellees. |
| Court | Supreme Court of Indiana |
Andrew Jacobs, Indianapolis, for appellants.
Lynnville G. Miles, James E. Noland, Indianapolis, for appellees.
This is an appeal from an action brought by Vera Clark and others as members of a local union of Laundry Workers against other members of the local and international officers of the union, claiming a misappropriation of the assets of the Local, destruction and threatened destruction of the records, books and papers of the Local, a refusal to hold elections and various other misconduct on the part of the defendants. The verified complaint asked for injunctive relief against the defendants' removing or destroying the records, taking or carrying away the property and assets of the Local. It also asked that a receiver be appointed without notice because of the threatened destruction and loss of the property and records, which would destroy evidence material to the prosecution of the case. Part of the defendants (the appellants in this case) are officers of the International Union and non-residents of the state. The complaint further alleges the defendants have removed records and property of the local union out of the State of Indiana and will continue to do so unless possession is preserved by a receiver and that a restraining order alone will not prevent irreparable injury.
We are first confronted with a motion to dismiss this appeal on the ground that, being an appeal from the appointment of a receiver, it must be taken within ten days from the order of appointment under Acts 1881 (Spec.Sess.), Ch. 38, § 254, p. 240, being § 3-2603, Burns' 1946 Replacement.
The facts material to this motion are that the complaint asking for the relief, including the appointment of a receiver without notice, was filed on January 16, 1958 and summons was issued out of the clerk's office for all the named defendants, returnable on the 17th day of February, 1958. Only those residing in Marion County were served. On the date of the filing of the verified complaint and on the basis of the same, a restraining order was issued and a receiver appointed without notice. On January 27th, more than ten days after the appointment of the receiver without notice, the appellants, officers of the International and non-residents, appear to have first learned of the appointment of the receiver and informed counsel for the plaintiff below that they intended as soon as possible to file a motion to vacate the appointment of the receiver. Two days later appellants filed an answer and motion to vacate the order appointing the receiver, with supporting affidavits. However, after the filing of the motion, appellants' counsel learned that two days prior thereto the action had been dismissed as to the appellants (International officers). On the same day on which appellees filed their motion to vacate, the court, without notice to appellants, ordered the motions to vacate both the appointment and the appellants' answer, with all other papers and affidavits of appellants, stricken from the record. The court also overruled a petition by the appellants to be reinstated as parties or to intervene, which petition was filed thereafter on that same day. This ruling was made without a hearing or a notice to the appellants.
It is with this background that appellees contend first that the appellants' ten day time has run within which an appeal can be taken from the order appointing a receiver without notice, and secondly, appellants are no longer parties with any interest in the receivership sufficient to sustain an appeal therefrom.
The order book entry shows, among other things, that on January 16, 1958, without notice, a restraining order was issued and Robert S. Smith was appointed receiver of the assets, property and records of the local union and gave bond accordingly. On January 21, 1958, the court entered a temporary injunction restraining any interference on the part of the defendants with any of the assets of the local union. The order further recited "the Court now appoints Robert S. Smith as Trustee of Local Union 350 ***" and "the plaintiffs agree to withdraw their request for the appointment of a receiver in this cause and the defendants further agree to request the dissolution of the Writ of Prohibition heretofore obtained by them against this Court." The agreement referred to was with defendants other than appellants, since appellants had entered no appearance at that time.
The appellants claim the ten-day period within which they may appeal is computed from the last order of the court appointing a "trustee" on January 21st, the appellants having filed their assignment of errors and their transcript for an appeal on January 31, 1958.
In considering this question it should be kept in mind that the receiver was appointed without notice. Such ex parte hearings are to be avoided where possible. It is only in extreme cases that a court may exercise such unusual powers. There must exist a pressing emergency which shows that waste, loss or destruction of property will probably occur before reasonable notice can be given and the parties heard and the lack of any other available remedy before a court may appoint a receiver on an ex parte hearing. The statute in this state says:
"Receivers shall not be appointed, either in term 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." Acts 1881 (Spec.Sess.), ch. 38, § 253, p. 240, being § 3-2602, Burns' 1946 Replacement.
Relief by receivership is an extraordinary remedy and is never exercised if there is an adequate remedy at law or the harm can be prevented by injunction or restraining order. In the latter instance a bond affords some protection against an improvident order made for such equitable relief. However, in the case of a receivership, the statute does not provide for any bond indemnifying the injured party in case of an erroneous appointment of a receiver. Because of the radical nature of the remedy through receivership, this court does not look with favor upon an appointment without notice. Rotan v. Cummins, 1957, 236 Ind. 394, 140 N.E.2d 505; Second Real Estate Investments, Inc. v. Johann, 1953, 232 Ind. 24, 111 N.E.2d 467; Morris v. Nixon, 1945, 223 Ind. 530, 62 N.E.2d 772.
It follows, therefore, particularly in cases where receivers have been appointed without notice, that the aggrieved party should have a full and complete opportunity to meet and oppose such ex parte adjudication of his rights at the first opportunity. It would be a sad state of affairs indeed if we should hold that a party against whom a receiver has been appointed without notice has no remedy by way of appeal if the ten day period expires following the appointment before he learns of the receivership or before he has had an adequate opportunity to be heard, yet this seems to be the rationale of appellees' motion to dismiss this appeal. The statute says:
"Appeal in ten days.--In all cases hereafter commenced or now pending in any of the courts of this state, in which a receiver may be appointed or refused, the party aggrieved may, within ten days thereafter, appeal from the decision of the court to the Supreme Court, without awaiting the final determination of such case; ***". Acts 1881 (Spec.Sess.), ch. 38, § 254, p. 240, being § 3-2603, Burns' 1946 Replacement.
Appellees in their motion to dismiss cite the case of Parfenoff v. Kozlowski, 218 Ind. 154, 31 N.E.2d 206, as their authority for the dismissal of this appeal. Upon an examination of the facts in that case we find that it is not in point. There a receiver was appointed on July 3, 1940. He failed to qualify and thereafter, on November 7, 1940 (over 30 days later), the court appointed a substitute as receiver. The appeal was taken from the order appointing the second person in place of the first person appointed receiver. The case does not make clear that the receivership order made in the first instance was made without notice or that the aggrieved party made his...
To continue reading
Request your trial
-
YOUNGSTOWN S. & T. CO. v. Patterson-Emerson-Comstock of Ind., Civ. No. 3159.
...receivership will not be granted as a matter of right, and will be denied as a matter of discretion if inappropriate. Fagan v. Clark, 238 Ind. 22, 148 N.E.2d 407 (1958); Ratcliff v. Ratcliff, 219 Ind. 429, 39 N.E.2d 435 (1945). A receiver is appointed to preserve the property in controversy......
-
State ex rel. Haberkorn v. DeKalb Circuit Court
...further held that this ten day period runs from the time the aggrieved party has notice of the appointment; Fagan, etc., et al. v. Clark et al. (1958), 238 Ind. 22, 148 N.E.2d 407; McConnell v. Fulmer (1952), 230 Ind. 576, 103 N.E.2d 803, 105 N.E.2d 817. There the court further pointed out ......
-
State ex rel. Nineteenth Hole, Inc. v. Marion Superior Court, Room No. 4
...We have held that this ten day period runs from the time the aggrieved party has notice of the appointment. Fagan, etc. et al. v. Clark et al. (1958), 238 Ind. 22, 148 N.E.2d 407; McConnell v. Fulmer (1952), 230 Ind. 576, 103 N.E.2d 803, 105 N.E.2d The record is usually very short and takes......
-
Environmental Control Systems, Inc. v. Allison
...only in extreme cases where the Court may exercise unusual powers and appoint a receiver without notice. In Fagan, etc., et al, v. Clark, et al (1957), 238 Ind. 22, 148 N.E.2d 407, the Court 'Such ex parte hearings are to be avoided where possible. It is only in extreme cases that a court m......