Johann v. Johann, No. 28890

• Docket Nº: No. 28890
• Citation: 111 N.E.2d 473, 232 Ind. 40
• Case Date: March 31, 1953
• Court: Supreme Court of Indiana

Page 473

111 N.E.2d 473 232 Ind. 40 JOHANN
v.
JOHANN et al. No. 28890. Supreme Court of Indiana. March 31, 1953.

[232 Ind. 41]

Page 474

Isidor Kahn, Harry P. Dees, Arthur R. Donovan and Robert Kahn, Evansville, Kahn, Dees, Donovan & Kahn, Evansville, of counsel, for appellant.

Arthur C. Stone and Jack A. Stone, Evansville, Stone & Stone, Evansville, of counsel, for appellee W. Johann, Jr.

EMMERT, Chief Justice.

This is an appeal from an interlocutory order appointing a receiver for the partnership property of William Johann, Sr. and William Johann, Jr., partners doing business as 'Radio & Refrigeration [232 Ind. 42] Co.' 'Bill, the Appliance Whiz,' 'Kalamazoo Sales and Service,' and 'Bottle Gas Company.'

On February 19, 1952, the appellee William Johann, Jr., filed his verified complaint in the Vanderburgh Probate Court, against the appellant for a dissolution of their partnership, an accounting, and the appointment of a receiver without notice. The complaint is as follows:

'1. That heretofore, in the year 1943, the plaintiff and the defendant entered into a partnership under the firm name and style of the Fix-It-Shop for the purpose of repairing radios and other equipment; that subsequently said business was expanded to include the buying and selling of appliances and the sale and servicing of bottle gas equipment; and that said partnership also did business under the name of Radio & Refrigeration Co. & Company, Bill, The Appliance Whiz, Kalamazoo Sales and Service, and Bottle Gas Company; that at the time of the information, it was agreed that the plaintiff and defendant should each contribute their time to the management and carrying on of said business; that plaintiff and defendant entered upon said partnership pursuant to said agreement, and that the plaintiff has since conducted his part of said business pursuant to said agreement.

'2. Plaintiff avers that since the commencement of said partnership, defendant has failed to fully carry out and perform the said contract and has failed to perform his duty as such partner, in this: That defendant has wrongfully, in violation of said parnership agreement, taken exclusive possession of the partnership property and effects and has assumed and is now assuming the entire ownership and control of said partnership property and assets and has excluded plaintiff from the business; and defendant has failed to properly account to the plaintiff for the plaintiff's interest in said partnership; that defendant wrongfully and without right, exercises authoritative jurisdiction [232 Ind. 43] and ownership of all the property and assets of said partnership to the exclusion of the plaintiff;

'3. That plaintiff has reason to believe that defendant failed to deposit all monies of the partnership that has come into his hands; that the defendant has failed to enter on the books of the partnership all monies received by him belonging to said partnership and has concealed from the plaintiff the amount of money actually received by him from time to time; and that defendant has wrongfully and without knowledge of the plaintiff, used the funds of the partnership for his individual benefit.

'4. Plaintiff further avers that there...