Indianapolis Dairymen's Co-op. v. Bottema

• Decision Date: 21 May 1948
• Docket Number: 28386.
• Citation: 79 N.E.2d 409,226 Ind. 260
• Parties: INDIANAPOLIS DAIRYMEN'S CO-OP., Inc., et al. v. BOTTEMA et al.
• Court: Indiana Supreme Court

79 N.E.2d 409

226 Ind. 260

INDIANAPOLIS DAIRYMEN'S CO-OP., Inc., et al. v. BOTTEMA et al.

No. 28386.

Supreme Court of Indiana

May 21, 1948

Appeal from Marion Circuit Court; Lloyd D Claycombe, Judge.

Davis Baltzell, Hartsock & Dongus, of Indianapolis, for appellants.

Irving M. Fauvre, Joe Rand Beckett, Charles K. McCormack, and Michael F. Fansler, all of Indianapolis, for appellees.

EMMERT Chief Justice.

The controversy in this case arose out of the issues involved in a suit pending in the Marion Circuit Court for an accounting and the appointment of a temporary receiver and for an injunction, one phase of which has previously been considered by this court this date. Indianapolis Dairymen's Cooperative, Inc., v. Bottema, 79 N.E.2d 399. It is not necessary now to restate the pleadings or the facts in the appeal from the order appointing a receiver pendente lite and in this case we will take judicial notice of such matters. Rooker v. Fidelity Trust Co., Trustee, 1931, 202 Ind. 641, 177 N.E. 454.

After the order appointing a receiver the appellees filed a petition, verified upon information belief of Cash M. Bottema, Jr., to maintain the status quo of the defendants in the appeal. Four (4) days later the court entered a judgment ordering the Indianapolis Dairymen's Cooperative, Inc., to 'protect and maintain in status quo all of the books, records, assets and property of said defendant, Indianapolis Dairymen's Cooperative, Inc., and all of the margin reserves held by it; * * * that the officers, agents, and employees desist from further attempting to reorganize said Indianapolis Dairymen's Cooperative, Inc., or from forming a new cooperative for the purpose of taking over the assets and rights belonging to said Indianapolis Dairymen's Cooperative, Inc; * * * that the agents, officers and employees of the Indianapolis Dairymen's Cooperative, Inc. make no further distribution of any of the funds or assets held by the said defendant, Indianapolis Dairymen's Cooperative, Inc. to any of its members; * * * that all property, funds or assets now in possession of defendant, Indianapolis Dairymen's Cooperative, Inc. be held intact, and that no distribution or disbursements be made, except in connection with the buying and selling of milk for its members or such other acts done in the regular course of business, until said appeal is determined by the Indiana Supreme Court, and the further order of this Court.'

This appeal is from the orders granting a temporary injunction and the overruling of the motion to dissolve the same. Section 2-3218, Burns' 1946 Replacement. The order book entry of the trial court preceding the finding proper recited: 'the Court having read the verified petition and heard the evidence thereon and being duly advised in the premises finds * * *.' However, the bill of exceptions approved by the trial judge recites in part: 'Whereupon, the court announced that he would enter the order as submitted by plaintiffs and directed that such order be entered, which is the same order appearing of record herein. No evidence in support of or in opposition to said petition for injunction other than the plaintiff's verified petition was introduced by either party. The court reporter was not called and said verified petition was not offered in evidence * * *.' This presents a conflict between the order book entry made as a preliminary part of the finding and judgment, and the subsequent bill of exceptions. Although the bill of exceptions is somewhat ambiguous, when it is construed with the order book entry it is apparent that the trial judge considered the verified petition in evidence for the purpose of making a finding and judgment on the temporary injunction, without the same being introduced in evidence by the moving parties, but that said verified petition was not offered in evidence, nor was any other evidence offered in behalf of the proponents on this issue.

The general rule is that a bill of exceptions imports absolute verity. Vivian Collieries Co. v. Cahall, 1916, 184 Ind. 473, 110 N.E. 672. Hinshaw v. State, 1919, 188 Ind. 447, 124 N.E. 458. If a matter must be shown by a bill of exceptions the recitals of the bill which operates to bring the facts distinctly to the attention of the judge who signs it will control a conflicting recital contained in a prior order book entry. Ewbanks Manual of Practice, 2d Ed., § 34, pp. 69, 70. From this state of the record we must hold that the verified petition for a temporary injunction was not introduced in evidence, and there was no other evidence of any other nature introduced on the issues on the petition for a temporary injunction.

Section 3-2105, Burns' 1946 Replacement, provides that:

'On the hearing of an application for a restraining order or temporary injunction, each party may read affidavits or documentary or record evidence.' Acts 1881 (Spec.Sess.) ch. 38, § 181, p. 240.

This court has previously construed this section of the statute, and has held that in a hearing for a temporary injunction the verified petition or application must be introduced in evidence before the court may consider its allegations as a basis for a finding.

In Public Service Commission v. Baltimore, etc. R. Co., 1931, 202 Ind. 449, 169 N.E. 530, 531, 176 N.E. 551, at page 452 the court said, '* * * it is necessary for the (verified) complaint to be introduced in evidence in order for it to become a part of the evidence, * * *.' Since there is no evidence in this record upon which the trial court could base finding the temporary injunction should issue, it was error for the trial court to grant the temporary injunction.

The appellants assert it was error for the trial court to issue a temporary injunction without requiring of the parties asking it a written undertaking with surety, as required by § 3-2107, Burns' 1946 Replacement. ^[1]

In Lake Erie & W. R. R. Co. v. Cluggish, 1895, 143 Ind. 347 42 N.E. 743, it was held that this section of the statute did not...