O'Malley v. Hankins
| Decision Date | 04 February 1936 |
| Docket Number | 26388 |
| Citation | 199 N.E. 558,209 Ind. 461 |
| Parties | O'MALLEY v. HANKINS et al |
| Court | Indiana Supreme Court |
Appeal from Superior Court, Marion County; Joseph R. williams judge.
1. RECEIVERS---Wrongful Receiverships---Allowances for Services---Generally.---Where judgment appointing a receiver is reversed because of insufficient facts to justify the appointment, neither the defendant nor the property involved is chargeable for services of the receiver or of the receiver's or the plaintiff's attorneys. p. 463.
2. RECEIVERS---Wrongful Receiverships---Allowances for Services---When Allowed.---Allowances may be properly made for the services of the receiver and his attorney, even after the appointment is set aside on appeal, where grounds for appointment of a receiver existed, or the owner of the property involved acquiesced in the appointment, or the receiver's services have been beneficial to the property but one seeking an allowance under such circumstances should be required to justify the exception to the general rule. p 463.
3. RECEIVERS---Control of Property---Pending Appeal From Order of Appointment.---Where defendant appealed from an order appointing a receiver and filed an appeal bond, the receiver's authority to act further was suspended pending the appeal. p. 465.
4. RECEIVERS---Wrongful Receiverships---Allowances for Services---Illegal Acts Beneficial to Trust.---Where a receiver was appointed for an insurance company without justification therefor, an appeal bond filed four days thereafter suspending the receiver's authority to act and the appointment eventually set aside on appeal, the receiver and his attorney were not entitled to compensation out of the trust, although they continued to act illegally after the filing of the appeal bond and collected a large amount of premiums. p. 465.
5. RECEIVERS---Wrongful Receiverships---Allowances for Services---When Charged as Costs.---Where the appointment of a receiver was set aside on appeal because of insufficient facts to justify the appointment, any amounts properly allowable to the receiver for services, expenses, or attorney fees, should have been allowed as costs of the action and assessed against the plaintiffs. p. 465.
Action by Hazel Hankins and others against the Missouri State Life Insurance Company for appointment of receivers, wherein receivers were appointed and de- fendant appealed, R. Emmett O'Malley, as Superintendent of the Insurance Department of the State of Missouri, being substituted as party appellant. The appointment of receivers was reversed on appeal. (O'Malley, etc. v. Hankins et al.
, 207 Ind. 589) and appellant petitioned for a writ of mandate to compel the trial court to set aside allowances made to the receivers for their services and attorney fees and for accounting in compliance with the mandate of the Supreme Court in said cause. Trial court directed to set aside allowances and to require accounting.
Appeal from Superior Court, Marion County; Joseph R. williams, judge.
C. C. Wysong, Clinton H. Givan, and Thompson, Rabb & Stevenson, all of Indianapolis, for appellant.
Samuel D. Miller, Chalmer Schlosser, and Burke G. Slaymaker, all of Indianapolis, and Philip Lutz, Jr., Atty. Gen., for appellee.
Appellant has petitioned for a writ of mandate to compel the court below to comply with the instructions of this court 'to set aside the order appointing receivers, and for further proceedings not inconsistent with this opinion.' O'Malley, as Superintendent, etc., v. Hankins et al. (1935) 207 Ind. 589, 194 N.E. 168. After the opinion was certified to the court below, the receivers filed a claim for $ 4,000 compensation for services as receivers, and their attorneys filed a claim for $ 6,000 for legal services as attorneys for the receivers. Both claims were on the same date allowed, without notice to appellant, and the receivers were ordered to pay the sums out of funds on hand and available, or from such other funds as may hereafter become available, for such purposes; and, after allowing the claims, the order appointing receivers was set aside pursuant to the mandate. Appellant asks a mandate directing and ordering the trial court to vacate and set aside the order allowing compensation to the receivers and to the attorneys for the receivers.
In the principal opinion it was held that there was no basis for the appointment of the receivers; that the appointment was erroneous; and the judgment of a appointment was ordered vacated. It cannot be questioned that, when a judgment appointing a receiver is reversed on appeal and vacated upon the ground that there were insufficient facts established to justify the appointment, neither the defendant nor the property for which the receiver was appointed can be charged for the services of the receiver, or the receiver's attorneys, or the plaintiff's attorneys. There are cases, however, in which...
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