International Union of Operating Engineers v. Hoisting and Portable Engineers, Local Union No. 103 of Intern. Union of Operating Engineers

• Decision Date: 13 February 1953
• Docket Number: No. 29017,29017
• Citation: 231 Ind. 634,110 N.E.2d 332
• Parties: INTERNATIONAL UNION OF OPERATING ENGINEERS et al. v. HOISTING AND PORTABLE ENGINEERS, LOCALUNION NO. 103 OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS et al. ASHLEY et al. v. TAYLOR et al.
• Court: Indiana Supreme Court

Page 332

110 N.E.2d 332

231 Ind. 634

INTERNATIONAL UNION OF OPERATING ENGINEERS et al. v. HOISTING AND PORTABLE ENGINEERS, LOCALUNION NO. 103 OF THE

INTERNATIONAL UNION OF OPERATING ENGINEERS et al.

ASHLEY et al. v. TAYLOR et al.

No. 29017.

Supreme Court of Indiana.

Feb. 13, 1953.

Frank A. Symmes and Charles W. Symmes, Indianapolis, Lloyd S. Hartzler, Ft. Wayne, Symmes, Fleming & Symmes, Indianapolis (Owen S. Boling, Indianapolis, of counsel), for appellants.

Lynnville G. Miles, Julian D. Pace, G. R. Redding, Indianapolis (Baker & Daniels, Indianapolis, of counsel), for appellees.

DRAPER, Judge.

This is an appeal from an order determining and allowing the fees of a receiver appointed by the court and those of his attorney.

A chronological history of the litigation and events leading to this order may be helpful to an understanding of the questions presented.

For convenience and brevity, the International Union of Operating Engineers will be referred to herein as 'the international union,' and Hoisting and Portable Engineers, Local Union No. 103 of the International Union of Operating Engineers will be referred to as 'the local union.'

The local union consisted of two branches, one at Fort Wayne and one at Indianapolis. In 1939, the international union took control of the local union and appointed a supervisor therefor. Dissension arose among members and groups of members of the local union over the international supervision.

In August, 1948, after a regular meeting of the Indianapolis branch, a committee was selected to institute proceedings to free the local union from international supervision. The committee and certain members attempted to function as a local union independent of international supervision.

In November, 1948, an election was called. New officers for the local union were elected and recognized by the international union as such, but they did not obtain possession of the property and assets of the local union until in February, 1949.

On December 24, 1948, an action was filed in the Marion Superior Court, Room 2, under Cause No. B-67162, for a temporary restraining order, temporary injunction, permanent injunction and the appointment of a receiver pendente lite. The complaint prayed that the defendants, their agents, employees, aiders and abettors be enjoined from removing any officers of the local union; from taking or holding possession of any of the property, books, monies, records, papers, automobiles or other things of value of the local union; from interfering with the operation and management or control of the local union; from interfering with any members of the local union as members in good standing in the local union and in the international union; and from interfering with any of the members in their employment or their employment relations with employers who have contracts with or deal with the local union or the international union. The complaint also included a prayer for the appointment of a receiver to take charge of the books, records, funds, management, operation and contract negotiations of the local union pending further order of court.

A temporary restraining order was issued and the appellee Cecil A. Taylor was appointed receiver to take charge of all property, funds and assets of every kind whatever belonging to the local union and to operate the local union until further order of the court. An appeal from the order appointing the receiver was taken to the Supreme Court, in which the receiver was named as an appellee. Upon a showing made, the Supreme Court dismissed the appeal as moot on April 12, 1949.

A change of venue was taken in said cause No. B-67162 to Hendricks County where, so far as the record discloses, it is still pending.

On April 28, 1949, in an action in the United States District Court for the Northern District of Indiana, a judgment was entered deciding that the local union had been duly placed under international supervision and that the officers elected for the local union in November, 1948, were duly elected.

On May 26, 1949, the appellees herein filed under said cause No. B-67162 in the Marion Superior Court, Room 2, their 'Verified Petition for Allowances' for the services of the appellee Taylor as receiver and those of appellees Miles and Pace as his attorneys.

Appellants addressed to this what appellants designated as a plea in abatement, but which appellants now say 'is more of a plea to jurisdiction and should be so treated.' This was overruled. Appellants then filed a motion to strike out and also a demurrer, both of which were overruled. Affirmative answers were then filed.

The court ordered and adjudged that the appellee Taylor as receiver receive $2,500 for his services and that the appellees Miles and Pace, attorneys for the receiver, receive $5,000 for their services. Appellants' motion for new trial was overruled.

Appellants first contend that the Marion Superior Court, Room 2, had no jurisdiction to allow fees after the venue was changed to Hendricks County. Appellees rely upon Burns' Stat. § 3-2618, which provides: 'In any action, proceeding or matter of any character or nature whatsoever relating to, connected with, or involving a receivership estate, any of the parties thereto shall be entitled to change of judge or a change of venue from the county for the same reasons and upon the same terms and conditions upon which there may be a change of judge or a change of venue from the county in any civil action: Provided, however, That nothing contained herein shall be construed to authorize a change of venue from the county concerning expenses allowed by the court incidental to the operation, management or administration of the receivership estate or to authorize a change of venue from the county upon any petition or proceeding to remove a receiver or to authorize a change of venue from the county upon the objections or exceptions to any partial or final account or report of any receiver, and hereafter there shall be no change of venue from the county of the administration of any receivership estate or upon any petition or proceeding to remove a receiver, or upon objections or exceptions to any partial or final account or report of any receiver.'

The Supreme Court, in a decision rendered subsequent to the enactment of the above-quoted statute, in State ex rel. Indianapolis Dairymen's Co-op. v. Marion Circuit Court, 1948, 226 Ind. 256, 79 N.E.2d 412, 414, stated: 'Where the sole and principal relief is the appointment of a receiver upon final judgment a change of venue from the county may be had, but where the receiver is requested pending the action as relief ancillary to the main cause, the issue on a temporary recivership, and the receivership itself remain in the court first acquiring jurisdiction. The jurisdiction of the issues in the principal cause is transferred to the court in another county to which the change of venue is taken.'

The above quoted case is quoted with approval in State ex rel. Glamack v. Horn, 1950, 228 Ind. 567, 94 N.E.2d 483.

The receiver was requested pending the action as relief ancillary to the main cause. In fact, appellants state in their brief, 'The receiver was appointed herein pendente lite without notice and such receivership is ancillary to the main action.' We therefore hold, in view of the above quoted statute and these opinions of the Supreme Court, that the change of venue from the county did not transfer the receivership from the jurisdiction of the Marion Superior Court. ¹

The receiver was appointed and gave bond to the approval of the court in the sum of $10,000 on December 24, 1948. On January 3, 1949, the appellants tendered their appeal bond in the same amount, which bond was approved, and the enforcement of the order and judgment appointing the receiver was suspended during appeal. The record and assignment of errors was filed in this court on the same day, and the cause was submitted under Rule 2-14.

On January 28, 1949, the appellants' brief was filed. On March 25, 1949, Cecil A. Taylor, the receiver, and his attorneys Miles and Pace, filed in this court their verified motion to dismiss the appeal. The motion was supported by several affidavits and alleged that the questions presented to this court by the appeal had become moot by...