Hametic Lodge Bldg. Ass'n v. Esters
| Decision Date | 23 May 1947 |
| Docket Number | 28286. |
| Citation | 73 N.E.2d 46,225 Ind. 118 |
| Parties | HAMETIC LODGE BLDG. ASS'N, Inc., et al. v. ESTERS. |
| Court | Indiana Supreme Court |
Appeal from Superior Court, Allen County; Edward W Meyers, judge.
William L. Briggs and Cecil A. McCoy, both of Fort Wayne, for appellants.
John W. Kenney, Alexander M. Campbell, Von E. Livingston, Ward E Dildine and Richard S. Teeple, all of Fort Wayne, for appellee.
This matter arose upon application for a receiver without notice. The verified complaint constituted the evidence given on the hearing, and at the conclusion the court appointed a receiver.
The appellee claims that the appeal is from the overruling of the motion to set aside and that no question is presented. However, the record does not seem to support the contention of the appellee.
The cause was filed and the receiver was appointed on the same day. Part of the defendants were served with summons on the date of the filing and part were served on the following day. A special appearance was entered on the day following the appointment of the receiver, and a motion to set aside the receivership was then filed. The motion was overruled two days later.
This appeal was taken within ten days from the appointment and the assignment of error is that 'The court erred in entering the order appointing the receiver without notice to appellants, * * *.' It is clear that the question here presented is based upon the appointment of the receiver without notice.
The complaint requested damages, an accounting, and the immediate appointment of a receiver without notice. It alleged that the defendant, Hametic Lodge Building Association, Inc., was in imminent danger of insolvency in that its officers and directors had wrongfully and fraudulently secreted and disposed of certain assets by wrongfully acquiring the stock held by the Hametic Lodge No 428, Improved Benevolent and Protective Order of Elks of the World; that such stock was acquited without notice to the directors and stockholders of the corporation and that this action reduced and impaired the book value of the stock of the plaintiff and rendered the corporation insolvent or in imminent danger of insolvency. It further alleged that the directors and officers wrongfully assigned to Hametic Lodge No. 428, Improved Benevolent and Protective Order of Elks of the World, all of the cash belonging to the corporation excepting $700; that an inspection of the books and papers of the appellant was requested and refused; that said action was detrimental to the rights of the appellee; that the stock of the corporation was greatly depreciated in value and the corporation was thereby rendered insolvent or in imminent danger thereof; that the officers threatened to dissolve the corporation and refused to collect rents and profits belonging to the same; that the officers and directors refused to account for monies received and secreted and misappropriated the same; and that an emergency existed for the appointment of a receiver without notice. The complaint was verified but contained no pertinent facts excepting as set out above.
In the case of Henderson v. Reynolds, 1907, 168 Ind. 522, 527, 81 N.E. 494, 496, 11 L.R.A.,N.S., 960, 11 Ann.Cas. 977, this court had before it a proceeding wherein the question of appointing a receiver without notice was involved. In that case it was said:
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