Largura Const. Co. v. Super-Steel Products Co.

• Citation: 22 N.E.2d 990,216 Ind. 58
• Decision Date: 23 October 1939
• Docket Number: 27273.
• Parties: LARGURA CONST. CO., Inc., v. SUPER-STEEL PRODUCTS CO. et al.
• Court: Indiana Supreme Court

22 N.E.2d 990

216 Ind. 58

LARGURA CONST. CO., Inc., v. SUPER-STEEL PRODUCTS CO. et al.

No. 27273.

Supreme Court of Indiana

October 23, 1939

Appeal from Superior Court, Lake County; Bertram C. Jenkines judge.

Gavit & Richardson, of Gary, for appellant.

Prete & Springmann, of Gary, for appellees.

TREMAIN Judge.

Appellee Super-Steel Products Company, filed a verified complaint in the court below against appellant to recover the sum of $1,750, alleged to be due on account, and prayed for the appointment of a receiver. On the date the complaint was filed, and without notice, in vacation, the judge, in chambers, appointed a receiver of appellant. Two days thereafter the appellant appeared before the judge, in vacation, and excepted to the order and prayed an appeal to this court, which was granted. The record and assignment of error were filed in this court within ten days. The error relied upon for reversal, stated in different forms, is that the judge, in vacation, erred in appointing a receiver of appellant without notice.

The complaint did not allege either the insolvency or the imminence of insolvency. It alleged that funds were due to the appellant from the United States government, but did not allege that said funds were received or would be received and distributed before notice could be given; that the plaintiff feared that at some future date the officers of the appellant would receive the funds and distribute them to other persons that appellant would not admit the validity of the claim sued upon; and that its refusal to do so was unjust. It is not alleged that the officers of appellant did not reside in the county where the action was filed, or that any one of them was absent from the county so that notice could not be served. The complaint did not allege that the officers had threatened any wrong, but only expressed the fear entertained by appellee that a wrong would be committed. It alleged:

'That to give notice to the said defendant corporation will so delay the prosecution of this plaintiff's claim against the defendant, as well as the claims of other creditors, that the funds which will be realized and paid over by the United States of America to the defendant will be placed beyond the reach of this and other creditors before their claims may be determined and adjudicated and would in the opinion of this plaintiff irreparably and severely damage this plaintiff and other creditors.'

Section 3-2602, Burns' Ind.St.1933, sec. 1156, Baldwin's Ind.St.1934, provides: 'Receivers shall not be appointed either in term or vacation, in any case, until the adverse party shall have appeared, or shall have had reasonable notice of the application for such appointment, except upon sufficient cause shown by affidavit.'

Under this section of the statute it has been held that, if a temporary restraining order will provide protection to the complaining party, a receiver cannot be appointed. Hawkins v. Aldridge, 1937, 211 Ind. 332, 7 N.E.2d 34, 109 A.L.R. 1205; Henderson v. Reynolds, 1907, 168 Ind. 522, 81 N.E. 494, 11 L.R.A., N.S., 960, 11 Ann.Cas. 977; Ryder v. Shea, 1915, 183 Ind. 15, 108 N.E. 104; Hizer v. Hizer, 1929, 201 Ind. 406, 169 N.E. 47.

The funds due from the government not having been received by appellant, and there being no allegation that such funds are due and will be received immediately or within a short time, no reason appears why the restraining order would not have been sufficient. If either an injunction or attachment were issued, the adverse party would be protected by a bond. The most that can be said of the plaintiff's complaint is that it contains the conclusions, expressed fears, and opinions of the plaintiff rather than averments of facts.

In the many cases appealed to this court where a receiver has been appointed without notice, scarcely any can be found where the action of the lower court has been...