Ledger Publishing Co. v. Scott
| Citation | 141 N.E. 609,193 Ind. 683 |
| Decision Date | 06 December 1923 |
| Docket Number | 24,092 |
| Parties | Ledger Publishing Company v. Scott |
| Court | Supreme Court of Indiana |
From Bartholomew Circuit Court; John W. Donaker, Judge.
Action by Lloyd E. Scott against the Ledger Publishing Company. From an order appointing a receiver without notice, the defendant appeals.
Reversed.
George W. Long and John Rynerson, for appellant.
This was an action brought by the appellee against the appellant on four promissory notes, and for the appointment of a receiver for appellant. Upon the filing of the complaint and its being presented to the court, a temporary receiver was appointed, without notice, "with the usual powers of a receiver, until the further order of this court."
This is an appeal from the interlocutory order appointing such receiver without notice. The appellee has not favored us with any brief.
The record shows that the appointment was made solely upon the showing made in the complaint, which asked for the appointment of a receiver without notice, and that no other evidence was received or heard by the court. It is contended by the appellant that this was not sufficient to justify the court's appointing a receiver without notice because the complaint or petition was not sworn to in positive and unqualified terms, but was only verified upon information and belief.
The verification to the complaint was in the following words "W. S. Huntington, being duly sworn says upon his oath that he is the attorney for the plaintiff in the above entitled cause of action and that he makes this affidavit for and on behalf of said plaintiff; that the matters and things stated and set forth in the foregoing and above complaint are true in substance and in fact as he is informed and verily believes."
If the court had heard oral testimony regarding the facts alleged, it would not be deemed sufficient if the witness or witnesses did not swear positively to their knowledge of the things about which they testified, but only testified that they had been informed of such facts and believed them to be true.
It is apparent that where, instead of receiving oral testimony, an affidavit is received as the only evidence, such affidavit should be as direct and positive as if the witness were testifying in open court.
It has been expressly decided by this court, as well as by many others, that where the only evidence which a court receives and upon which it acts in appointing a receiver without notice, is a verified petition or complaint, as in this case, such petition must be sworn to in positive terms, and that it is insufficient if it is sworn to upon information and belief. Mannos v. Bishop, etc., Co. (1914), 181 Ind. 343, 104 N.E. 579, and cases cited.
It was therefore error to appoint a receiver in this case, without notice, since the only evidence upon which the court acted was the complaint which was not sworn to except upon information and belief.
It is also contended by the appellant that the complaint does not disclose sufficient facts to justify the appointment of a...
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