Harris v. United States Savings Fund And Investment Co.

• Decision Date: 24 November 1896
• Docket Number: 17,828
• Citation: 45 N.E. 328,146 Ind. 265
• Parties: Harris et ux. v. United States Savings Fund and Investment Company
• Court: Indiana Supreme Court

45 N.E. 328

146 Ind. 265

Harris et ux. v. United States Savings Fund and Investment Company

No. 17,828

Supreme Court of Indiana

November 24, 1896

From the Hendricks Circuit Court.

Affirmed.

Charles Foley, for appellants.

Hogate & Clark and Cofer & Hadley, for appellee.

OPINION

Hackney, J.

The appellee, the United States Savings Fund and Investment Company, obtained a personal judgment against the appellant John W. Harris, and the foreclosure of a real estate mortgage against him and his wife, Lottie B. Harris, who is also an appellant herein.

Because the regular judge of the lower court was interested in the appellee company, he appointed the judge of another circuit to preside in said cause as special judge. After the judgment and decree above mentioned were duly entered and signed by said special judge but during the same term of court, the appellee filed a petition against the appellants for the appointment of a receiver to take charge of the property included in said decree. Upon the return day of the summons issued upon said petition, to-wit: seventeen days after the entry of said judgment and decree, the regular judge of said court, by reason of his interest aforesaid, appointed a member of the bar of said court to hear the proceedings upon said petition. The petition set up the judgment and decree above mentioned, and alleged that the property was not of sufficient value by the sum of $ 500.00 to discharge said decree; that John W. Harris was insolvent; that appellants owned the property as tenants by entirety, but did not occupy the same; that insurance on the building would soon expire; that appellee had been and would be required to pay the taxes upon said property, and that its rental value was from $ 8.00 to $ 12.00 per month. The prayer asked that a receiver "apply the income, rents and profits from said real estate as the court shall direct and as equity demands."

By way of answer in abatement, the appellants pleaded the said first appointment of a special judge in the original suit; that he had presided as above stated, and that his appointment had never been revoked or set aside, and that he had not declined to act further, but that no effort had been made to procure his further attendance; that they had objected to the appointment of said second special judge, and that, by reason of said facts, he was not authorized to preside in the hearing of said petition.

To this answer the court sustained the appellee's demurrer, and thereupon the appellants offered to consent to the appointment of a receiver upon the condition that the net proceeds of the rentals, after paying costs of receivership, taxes, insurance and maintenance of property, be paid to them. This offer was declined by the appellee, and the appellant, John W. Harris, answered further, admitting the allegations of the petition, alleging facts disclosing that he was a resident householder of the State and entitled to exempt property from execution; that he had only his interest in the real estate in question and the rentals thereof, and he claimed said rentals as exempt from execution and denied the right to a receiver therefor. To this answer the court sustained the appellee's demurrer. The appellant, John W. Harris, declined to plead further. Lottie B. Harris answered further in general denial, and upon a hearing by the court a receiver was appointed. At this point in the proceedings the appellants moved the court to order said receiver to distribute the net proceeds, after paying costs, etc., to them, which motion was overruled, and the court thereupon ordered the receiver to preserve the property, pay taxes and insurance and to abide the further order of the court.

The sufficiency of the petition, the jurisdiction of said second special judge and the right of John W. Harris to an exemption of said rentals are the questions argued in this court.

The court, through its regular judge, notwithstanding the change of venue or change from such regular judge, possessed jurisdiction to name the special judge who should hear and determine the cause, or any part thereof undisposed of. Stinson v. State, ex rel., 32 Ind 124; Glenn v. State, 46 Ind. 368: Hutts...