Hoosier Nat. Life Ins. Co. v. Gary Elec. Co.

• Decision Date: 31 October 1938
• Docket Number: No. 27113.,27113.
• Citation: 17 N.E.2d 85,214 Ind. 597
• Parties: HOOSIER NAT. LIFE INS. CO. v. GARY ELECTRIC CO. et al.
• Court: Indiana Supreme Court

214 Ind. 597

17 N.E.2d 85

HOOSIER NAT. LIFE INS. CO.

v.GARY ELECTRIC CO. et al.

No. 27113.

Supreme Court of Indiana.

Oct. 31, 1938.

Action by the Gary Electric Company and others against the Hoosier National Life Insurance Company, in the nature of an action on account. From an interlocutory order appointing a receiver for the defendant without notice, the defendant appeals.

Cause reversed with directions.Appeal from Superior Court, Lake County; Bertram C. Jenkines, judge.

Harold C. Hector, of Hammond, and F. F. Eichhorn, of Gary, for appellant.

George Sheehan, of Gary, for appellee.

SHAKE, Judge.

This is an appeal from an interlocutory order of Lake Superior Court, Room 3, appointing a receiver for the appellant without notice. The errors assigned are these: That the court below was without jurisdiction and that the complaint does not state facts sufficient to justify the appointment without notice.

The complaint was in the nature of an action on account and alleged that the appellant was a life insurance corporation organized under the laws of this state. Burns' Ann.St.1933, § 39-218, Sec. 9706, Baldwin's Ind.St.1934 is as follows: ‘No order, judgment or decree, providing for an accounting or enjoining, restraining or interfering with the prosecution of the business of any insurance corporation, association or society, organized or doing business under the provisions of this act, or appointing a temporary or permanent receiver thereof, shall be made or granted otherwise than upon the application of the attorney-general on his own motion, or after his approval of a request in writing therefor by the auditor of state, except in an action by a judgment creditor or in proceedings supplementary to execution’. Since appellant has made out a prima facie case of error and since appellees have not filed any brief in support of the order appealed from, we would be justified in sustaining the claim that the court below was without jurisdiction.

But if Burns' 1933, § 39-218, Sec. 9706, Baldwin's Ind.St.1934, were not applicable to the case, the appointment of this receiver could not stand. A complaint verified on information and belief is not sufficient evidence to authorize the appointment of a receiver without notice. Henderson v. Reynolds, 1907, 168 Ind. 522, 81 N.E. 494, 11 L.R.A., N.S., 960, 11 Ann.Cas. 977. Nor was the allegation of emergency sufficient. The substance of this allegation is merely that if notice is required to be served,...