H-A Circus Operating Corp. v. Silberstein

• Decision Date: 03 April 1939
• Docket Number: 27156.
• Citation: 19 N.E.2d 1013,215 Ind. 413
• Parties: H-A CIRCUS OPERATING CORPORATION v. SILBERSTEIN et al.
• Court: Indiana Supreme Court

19 N.E.2d 1013

215 Ind. 413

H-A CIRCUS OPERATING CORPORATION v. SILBERSTEIN et al.

No. 27156.

Supreme Court of Indiana

April 3, 1939

Appeal from Miami Circuit Court; Hal Philips Judge.

Rhodes & Rhodes, of Peru, for appellant.

Chas A. Rich, of Peru, and Rosenberg & Brenner, of Kansas City, Mo., for appellees.

TREMAIN Chief Justice.

The appellees filed their complaint in the Miami Circuit Court in which they alleged that the appellant, and Hagenbeck-Wallace Circus Company, and Howard Y. Bary, doing business as the Hagenbeck-Wallace Circus, were indebted to them upon written contracts; that prior thereto they filed a suit, asking that a receiver be appointed to take charge of the defendant's property, in the Circuit Court of Jackson County, Missouri at Kansas City, and John R. James of Kansas City was appointed receiver; that the defendants owned intangible property in Miami County, Indiana; and they ask that a receiver ancillary to said James be appointed by the Miami Circuit Court.

Upon a verified application the court appointed a receiver without notice to appellant. This appeal is from that order. The errors assigned for reversal are: (1) The court erred in appointing a receiver without notice, and (2) the finding and order of the court are not sustained by sufficient evidence and are contrary to law.

The appellant asserts that the complaint is improperly verified and insufficient because it is made by an attorney to his 'best knowledge and belief.' An examination of the verified application for a receiver filed with the complaint discloses that it was verified by plaintiff's attorney as follows: 'That the matters and things set forth in the above and foregoing application for receiver without notice is true in substance and in fact.' This verification is sufficient and is not based upon information and belief.

Appellant further contends that the facts contained in the application are insufficient to warrant the appointment of a receiver without notice. Among other things the application alleges: 'That said defendant has removed most of its property out of the State of Indiana and beyond the jurisdiction of this Court, and that said defendant is purported to have certain intangible personal property within this jurisdiction, and that unless a Receiver is appointed for said property immediately, the same will likely be destroyed and/or moved out of the jurisdiction of this Court, and that these plaintiffs and other creditors of said defendant will lose said property, and that these plaintiffs have no adequate remedy at law to protect said property and prevent its removal from this jurisdiction because of the nature of said property.'

The verified application, together with other proof, part of which consisted of a certified copy of the judgment of the Circuit Court of Jackson County, Missouri, appointing James as receiver, was introduced in evidence.

The appointment of a receiver without notice is permissible. Section 3-2602, Burns' Ind.St.1933, Sec. 1156 Baldwin's Ind.St.1934, provides: '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.' The exception to that section of the statute, in the proper case, warrants the appointment...