Hizer v. Hizer

• Decision Date: 06 December 1929
• Docket Number: 25,140
• Citation: 169 N.E. 47,201 Ind. 406
• Parties: Hizer v. Hizer
• Court: Indiana Supreme Court

169 N.E. 47

201 Ind. 406

Hizer v. Hizer

No. 25,140

Supreme Court of Indiana

December 6, 1929

1. RECEIVERS---Appointment Without Notice---Facts and Conditions Necessary.---Under the provisions of 1301 Burns 1926, in order to justify the appointment of a receiver without notice, the defendant must either be beyond the jurisdiction of the court or cannot be found, and there must be an emergency making it necessary to prevent waste, destruction or loss of property, or the facts must be such that, to give notice will jeopardize the custody or control of the property which is sought by the appointment of a receiver. If a temporary restraining order against the defendant will protect the property in question, a receiver should not be appointed without notice. p. 412.

2. RECEIVERS---Appointment Without Notice---Verified Complaint Therefor---Allegations Held Not Averment of Facts.---Allegations in a verified complaint for the appointment of a receiver without notice to the effect that an emergency exists for the immediate appointment of some officer of the court to take charge of the property of the defendant without notice and that a necessity exists for the immediate appointment of a temporary guardian or receiver were not allegations of facts which would justify the appointment of a receiver without notice (1301 Burns 1926) p. 413.

3. RECEIVERS---Appointment Without Notice---Court Must Determine Whether Emergency Exists.---The court, not the complainant must determine whether an emergency exists for the appointment of a receiver without notice. p. 414.

4. RECEIVERS---Appointment Without Notice---Sufficiency of Complaint---When Appointment Erroneous.---To justify the appointment of a receiver without notice, it must appear either by the verified complaint or by the affidavits in support of it, not only that there is cause for the appointment of a receiver, but that there is cause for such appointment without notice, and, if sufficient reason for not giving notice is not shown by affidavit, the appointment is forbidden by the statute (1301 Burns 1926) and is erroneous p. 414.

5. RECEIVERS---Appointment Without Notice---Evidence Admissible.---On an application for the appointment of a receiver without notice the only evidence admissible is the verified complaint and the affidavits filed in support thereof. p. 414.

6. RECEIVERS---Appointment Without Notice---Verified Complaint---Must State Facts Showing Necessity for Not Giving Notice---Statement of Opinions or Conclusions Insufficient.---On an application for the appointment of a receiver without notice, the verified complaint or the affidavits in support of it must state facts showing the necessity for not giving notice, and the mere statement of an opinion or conclusion as to such necessity will not justify the appointment of a receiver without notice. p. 414.

7. RECEIVERS---Appointment Without Notice---Reason for Not Giving Notice---How Established.---The reason for appointing a receiver without notice must be derived from facts stated in the verified application showing the existence of an emergency rendering interference necessary before notice can be given, in order to prevent waste, destruction or loss, and showing that protection cannot be afforded the plaintiff in any other way. p. 415.

From Fulton Circuit Court; Reuben R. Carr, Judge.

Application by Mayzanna Hizer for the appointment of a receiver for the property of John E. Hizer. From an appointment without notice, the defendant appealed.

Reversed.

John G. Reidelbach, Louis A. Reidelbach and John M. Spangler, for appellant.

Campbell & Emmons, for appellee.

OPINION

Willoughby, J.

On February 27, 1926, the appellee filed in the Fulton Circuit Court, in vacation, a verified complaint alleging as follows:

"Comes now the plaintiff in the above entitled cause and in the way of a petition for a temporary guardian for said defendant, and his property, or for a receiver says: That said defendant lives 14 miles from Rochester, Indiana, and is a resident of Fulton County, Indiana, and that he is now and has been for more than 6 months last past a person of unsound mind; that said defendant is the owner of personal property in said county in the following particulars, to wit:

"Five head of hogs, worth $ 125.00; eight shoats, worth $ 100.00; one sow and three pigs worth $ 50.00; five head of cows, worth $ 375.00; ten head of horses, worth $ 600.00; two hundred bushels of wheat, worth $ 340.00; corn in the field, worth $ 80.00; oats in crib, worth $ 25.00; household goods, worth $ 50.00; farm implements, worth $ 10.00; and money on hands and in bank the amount of which is unknown to affiant.

"That said defendant is the owner of 110 acres of land in said county and state, worth $ 10,000.00. That said defendant has no other property real or personal.

"That said defendant is indebted in the following items, to wit: One mortgage note on said premises in the sum of $ 4,000; one note of $ 300.00 due First State Bank of Kewanna, Indiana; one note of $ 125.00 due said bank; one note of $ 227.00 due Grass Creek Bank; one note of $ 36.00 due said Grass Creek Bank; one note of $ 357.00 due Thomas Harrison; other obligations evidenced by notes and accounts in the sum of $ 500.00.

"That said defendant declares that he will not pay his debts and that he will not pay the interest on said mortgage which becomes due March 1, 1926, and that he will let said mortgage be foreclosed and said property taken, which foreclosure may be had any time after said first day of March.

"That the interest on said mortgage in the sum of $ 228.00 will be due March 1, 1926, that the spring taxes due in 1926, will amount to more than $ 100.00 and will be due on or before the first Monday in May, 1926; that said several notes bear interest at the rate of seven per cent, and for the most part are due, or past due, or will be in a few days.

"That said ten head of horses are a useless expense upon said premises with nothing for them to do, and they are being fed from day to day at a great expense to the property of said defendant; that said defendant is broken down in health and unable to farm said premises and to use said horses, and that the same should be sold.

"That said defendant and his wife, the plaintiff herein, heretofore up to February 9, 1926, lived together on said premises and farm as husband and wife; that, on or about said date, the defendant threatened to take her life, and by his conduct so frightened and alarmed the plaintiff that she is afraid that the defendant will do her bodily harm, and, in consequence thereof, she has left said premises, and ever since has been staying at the homes of friends nearby, and is now afraid to return to the premises of said defendant.

"That said defendant, by reason of his ill health and by reason of his unsoundness of mind, is incapable of taking care of and managing said property and is incapable of transacting his business, and his property aforesaid is going to waste on account of the inability of said defendant to properly care for the same.

"That on the 20th day of February, 1926, a commission consisting of a Justice of the Peace, and two reputable physicians of said county, held an inquest on said defendant, and found him to be of unsound mind and that he was dangerous to the community, if he be permitted to run at large and that he should be admitted into the Longcliff Hospital for the Insane in said state, and that said disposition of said defendant is now being brought about by the proper authorities and as speedily as the circumstances in the matter will permit.

"That the plaintiff [defendant] is threatening to sell and incumber said property, and he is now in the very act of doing so, and will do so, and unless said property is at once taken from his custody and control, said property and the proceeds thereof will be lost, wasted and destroyed; that the charge of said farm and the care of said stock is being neglected, and said property is going to waste and destruction and that said stock is being neglected and not properly cared for and is in a starved and emaciated condition, and the milk and butter from said cows is being wasted and lost; that in said condition of mind of defendant a temporary restraining order would not accomplish the purpose intended, and said property would, notwithstanding, be lost and destroyed; and that an emergency exists for the immediate appointment of some officer to take charge of said property without notice to said defendant, that the plaintiff as the wife of said defendant has an interest in all of said property of said defendant as herein set out.

"That

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