Johann v. Johann, 28890

• Citation: 111 N.E.2d 473,232 Ind. 40
• Decision Date: 31 March 1953
• Docket Number: No. 28890,28890
• Parties: JOHANN v. JOHANN et al.
• 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.

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 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 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 is such irreconcilable dissension between the partners as to endanger the partnership good will and property.

'5. Plaintiff further avers that the said partnership is actively engaged in business and that it would be to the best interest of said business that it be continued, but that the 1950 annual report of said partnership showed that its capital was impaired to the extent of $42,071.87, indicating that the liabilities were in excess of the assets of the partnership; that according to said report, it has not now sufficient money and means to pay its overdue indebtedness, and that as a consequence there is danger that the creditors of the partnership may bring actions against the partnership and the partnership subjected to excessive costs and expenses arising from multiplicity of lawsuits.

'6. Plaintiff avers that it would be to the best interest of the partnership and all its creditors, and all persons and parties interested, to have a Receiver appointed, and that such Receiver be appointed for such partnership, and that said Receiver be authorized and permitted to continue said business, and that said Receiver then examine into the accounts and properties of the partnership in order to aid and assist in the determination of a proper accounting between the said partners.

'7. Plaintiff further avers that the defendant has left the State of Indiana and is now a non-resident of the State of Indiana and is in process of transferring his assets, and the assets of said partnership beyond the jurisdiction of the State of Indiana; that an emergency exists for the appointment of a Receiver, without notice, to prevent waste, destruction or loss of the partnership property; that if there is any delay in the appointment of a Receiver, and the defendant is allowed to transfer the assets of said partnership, and to conduct the business as it has been conducted, the plaintiff, and the partnership, will suffer irreparable damage.

'Wherefore, plaintiff asks that an accounting be taken of all the partnership dealings and transactions from the commencement thereof, and that a...