Maple v. McReynolds
| Decision Date | 25 May 1935 |
| Docket Number | 25,841 |
| Citation | 196 N.E. 3,208 Ind. 338 |
| Parties | Maple v. McReynolds et al |
| Court | Indiana Supreme Court |
From Howard Circuit Court; Joseph Cripe, Judge.
Action by Hettie M. McReynolds and another against Otis Maple for accounting and settlement of a farm partnership, wherein an interlocutory order appointing a receiver was made. From such order, defendant appealed.
Affirmed.
Miller & Uhlir, for appellant.
Marshall Hillis & Coffel, for appellee.
This is an appeal from an interlocutory order appointing a receiver, which order was made in an action brought by appellee, Hettie M. McReynolds, against appellant for an accounting and dissolution of their partnership. The order appointing the receiver was made by the trial court after a hearing upon the issues raised by (1) appellant's answer in general denial, (2) his second paragraph of affirmative answer, and (3) his third paragraph of answer by way of cross-complaint against appellee Charles McReynolds.
The application for appointment of a receiver alleged that the defendant was in possession of plaintiff's farm under a partnership agreement between the plaintiff and defendant that by the terms of this agreement plaintiff had a three-fourths interest, and the defendant a one-fourth interest, in live stock, implements, and poultry used by the defendant in operating the farm; and that plaintiff was entitled to three-fourths of the profits derived from such operations and defendant to one-fourth of such profits. It was further alleged that defendant had failed and refused for more than six months, to make any accounting to plaintiff of the profits so derived, though an accounting frequently had been demanded during that time. It was also alleged that defendant had cashed checks received from the sale of milk and had converted the proceeds to his own use; that he had sold live stock belonging to the partnership and had refused to make any accounting therefor; that he was threatening to sell some hogs belonging to the partnership and to convert the proceeds to his own use, and that he was insolvent.
While there was some conflict in the evidence as to whether appellant had threatened to sell hogs and convert the proceeds to his own use, and also as to whether appellant or appellees had demanded and been refused an accounting, there was evidence to support each of the allegations contained in the application for a receiver. Appellant concedes that he had received $ 55.00 from the sale of a calf, and between $ 170.00 and $ 200.00 from the sale of milk, none of which money was paid, or accounted for, to appellee. It is apparent from an examination of the evidence presented to the trial court that ill feeling had existed between the parties for some time prior to the commencement of this action and that appellant had threatenedappellees with violence and prosecution.
Appellant urges upon appeal that the purpose of plaintiff's action was "not the appointment of a receiver but was to obtain an accounting and settlement of the partnership affairs"; that a receiver should not be appointed until "after the debits and credits are struck as between the two partners" and that "a temporary restraining order forbidding the sale or removal of the partnership property by the partner" in possession of the property "would be entirely adequate and ample for the protection of all the interests of all the partners until after the accounting suit was tried."
The fact that the relief sought in asking for the appointment of a receiver is secondary to a main cause of action for an accounting and settlement of partnership affairs, is not a ground for refusing to appoint a receiver.
Stair v. Meissel (1934), 207 Ind. 280, 291, 192 N.E. 453.
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