Hatfield v. Cummings

• Decision Date: 19 February 1895
• Docket Number: 17,083
• Citation: 39 N.E. 859,142 Ind. 350
• Parties: Hatfield et al. v. Cummings, Receiver, Etc
• Court: Indiana Supreme Court

39 N.E. 859

142 Ind. 350

Hatfield et al. v. Cummings, Receiver, Etc

No. 17,083

Supreme Court of Indiana

February 19, 1895

From the Huntington Circuit Court.

The judgment is reversed, at the cost of the appellee, with instructions to the court to sustain the demurrer to the complaint, with leave to amend, and for further proceedings in accordance with this opinion.

J. M Hatfield, J. T. Alexander, J. B. Kenner and U. S. Lesh, for appellants.

L. P Milligan, O. W. Whitelock and S. E. Cook, for appellee.

OPINION

Jordan, J.

This action was commenced by the appellee in his own name, as the receiver of the Lime City Building, Loan and Savings Association, to obtain a judgment upon a note executed by appellant, Thursey J. Hatfield, and the foreclosure of a mortgage executed by the appellants, Thursey J. and James M Hatfield, to said association.

The appellee prevailed, and recovered a judgment upon the note in suit against Thursey J and a decree of foreclosure of the mortgage against all of the appellants.

From this judgment the appellants have appealed to this court, and have separately assigned a number of alleged errors, among which are: "That the court erred in overruling the demurrer to the complaint; that the complaint does not state facts sufficient to constitute a cause of action; that the court erred in overruling a motion for a new trial."

Appellants assail the sufficiency of the complaint upon several grounds: One of which is that it does not state a cause of action in appellee (plaintiff below).

The only averments therein, as to the right or authority of the receiver to sue upon the note and mortgage in question, are as follows:

"That on the 15th day of June, 1892, in an action pending, which action was commenced on April 12, 1890, in said court, wherein Henry C. Black, is plaintiff, and the Lime City Building Loan and Savings Association, et al., are defendants, to recover the value of said Black's stock in said association, he was duly appointed, and has since qualified as receiver of said association, and empowered to collect by suits the claims due said association."

It is well settled by the authorities that a complaint filed by a receiver, in his own name, to sufficiently state a cause of action, must show by proper averments, that leave of court to institute and prosecute the action has been first obtained. Davis v. Ladoga Creamery Co., 128 Ind. 222 and authorities there cited. Wayne Pike Co. v. State, ex rel., 134 Ind. 672, 34 N.E. 440, and cases there cited. In High on Receivers, section 201, the law on the question involved is thus stated: "It is essential therefore in order to sustain a suit brought by him (the receiver), in his representative capacity, that he allege and set forth the equities of the parties whose right of actions he represents, and he must also show that by the appointment of the court, properly made in a matter, within its jurisdiction, that authority has been conferred upon him in his representative capacity as receiver to...