Kalleres v. Glover
| Decision Date | 29 June 1935 |
| Docket Number | 26,552 |
| Citation | 196 N.E. 679,208 Ind. 472 |
| Parties | Kalleres et al. v. Glover, Receiver |
| Court | Indiana Supreme Court |
From Lake Superior Court; Charles E. Greenwald, Judge.
Action by Rose Cohn against Fiftyler Realty Company, wherein William J. Glover was appointed receiver, and Peter M. Kalleres and others filed objections to the receiver's petitions to lease and sell certain receivership property: From the judgment rendered, objectors appealed. Transferred from the Appellate Court.
Affirmed.
Harry P. Sharavsky, Robert McMahan, Owen S Boling, and John G. Yeagley, for appellants.
Gavit Hall, Smith & Gavit, for appellees.
Appellee, Rose Cohn, on April 18, 1929, filed her complaint in the Lake Superior Court against appellee, Fiftyler Realty Company, for the appointment of a receiver to preserve and protect her interests therein as a preferred stockholder and the interest of other preferred stockholders. William J. Glover was appointed receiver and duly qualified. On July 31, 1929, the receiver filed his petition for permission to lease certain real estate to the Indiana-Ohio Theatre Corporation, in which it was alleged that the Gary-Tivoli Company owned all the common stock, except 5 shares. The Meyer-Kiser Bank of Indianapolis, as fiscal agent of the holders of the first preferred stock of Fiftyler Realty Company by its attorneys, the Gary-Tivoli Company by its attorneys, and the Fiftyler Realty Company by its attorneys, filed written consent to the granting of the prayer of the receiver to enter into a lease with the Indiana-Ohio Theatre Corporation. On August 3, 1929, the appellants filed their written objections to the receiver entering into the proposed lease. On August 5, 1929, the receiver filed a supplemental report in connection with the proposed lease of certain real estate; the petition of the receiver to sell was denied, and the court ordered the receiver to file his petition for the sale of the real estate.
On August 27, 1929, the receiver filed a petition for order of sale of all the assets of the receivership; on August 31, 1929, the appellants filed written objections to the petition for sale. On September 5, 1929, the receiver orally moved to strike out appellants' objections. On September 2, 1929, Fiftyler Realty Company, appellee, filed a cross-complaint to be authorized to enter into a lease with the Indiana-Ohio Theatre Corporation, and to this petition the appellants filed objections. On motion of the receiver the objections of the appellants were stricken out.
In the objections of appellants to the petition of the receiver to lease to the Indiana-Ohio Theatre Company, they assert and allege that they were the legal owners, subject to a collateral agreement, of Two Thousand Two Hundred and Forty-One (2,241) shares of the common stock of the Fiftyler Realty Company, and the prayer of their petition was that a hearing be had upon their petition. It was alleged in the petition to sell that the Gary-Tivoli Company had Two Thousand Two Hundred Thirty-Seven (2,237) shares of common stock and the appellants had four (4) shares, but that the Gary-Tivoli Company claimed to be the owner of these four shares.
On the 3rd day of September, 1929, it is shown by the record that Kalleres, Kalleres, Loupas and Loupas, appellants, having appeared to the petition to sell and filed their written objections and exceptions to the petition to sell, the matter was submitted to the court and the judge, having heard the evidence of the parties as to the ownership by Kalleres, Kalleres, Loupas and Loupas, appellants, or any or either of them of any shares of common stock in defendant corporation, found that the Gary-Tivoli Company was the owner of all the common stock except nine (9) shares, and that the appellants were not the owners of any stock in the corporation, and judgment was entered accordingly, and on the 5th day of September, 1929, the objections and exceptions of appellants to the petition were stricken out.
The motion of the receiver to strike out the objections and exceptions of appellants to the cross petition of the Fiftyler Realty Company was sustained on the ground that it had been adjudicated, that they were not the owners of any stock in the corporation.
The receiver was finally ordered and authorized to enter into a lease with the Indiana-Ohio Theatre Corporation.
The errors relied upon for reversal are as follows:
(1) The court erred in sustaining the motion of William J. Glover as receiver of Fiftyler Realty Company to strike out appellant's objections to said receiver's petition to sell all the property and assets of the receivership.
(2) The court erred in striking out appellant's objections and exceptions to the petition of William J. Glover as receiver of Fiftyler Realty Company to sell all of the property and assets of the receivership.
(3) The court erred in sustaining the motion of William J. Glover as receiver of the Fiftyler Realty Company to strike out appellants' objections and exceptions to the cross petition of the Fiftyler Realty Company which asked that its property in the hands of said receiver be leased to the Indiana-Ohio Theatre Corporation in lieu of a sale thereof.
(4) The court erred in striking out appellants' objection and exceptions to the cross-petition of the Fiftyler Realty Company which asked that its property in the hands of said receiver be leased to the Indiana-Ohio Theatre Corporation in lieu of a sale thereof.
(5) The court erred in granting the cross-petition of the Fiftyler Realty Company which asked that its property in the hands of said receiver be leased to the Indiana-Ohio Theatre Corporation in lieu of a sale thereof.
(6) The court erred in setting aside its order of sale of the property of the receivership.
(7) The court erred in authorizing and directing that William J Glover as receiver of the Fiftyler Realty Company enter into the proposed lease with the Indiana-Ohio Theatre Corporation which was for a period of ten years with privilege of renewal for an additional ten...
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