Marshall v. Matson

• Citation: 86 N.E. 339,171 Ind. 238
• Decision Date: 24 November 1908
• Docket Number: 21,112
• Parties: Marshall et al. v. Matson
• Court: Supreme Court of Indiana

86 N.E. 339

171 Ind. 238

Marshall et al. v. Matson

No. 21,112

Supreme Court of Indiana

November 24, 1908

From Monroe Circuit Court; James B. Wilson, Judge.

Suit by James H. Matson against Harley E. Marshall and others. From an interlocutory order appointing a receiver, defendants appeal.

Reversed.

Lee & Darby and Miers & Corr, for appellants.

Duncan & Batman, for appellee.

OPINION

Monks, J.

This is an appeal from an interlocutory order appointing a receiver in vacation without notice.

Appellee insists that as no original paper, except a bill of exceptions containing the evidence, if embraced in the transcript forms a part thereof, considering appellant's precipe and the clerk's certificate together, it is not shown what parts of the transcript are copies and what originals, and that therefore no question is presented for determination, because this court cannot say what parts of said transcript are a part of the record.

Under our code of civil procedure no original paper, document, or entry in a cause can be incorporated in the transcript filed on appeal to this court, but all papers, documents, and entries must be copied into the transcript, and if any original paper, document or entry is incorporated in the transcript it will be disregarded. §§ 690, 691 Burns 1908, §§ 649, 650 R. S. 1881; Mankin v. Pennsylvania Co. (1903), 160 Ind. 447, 451, 452 67 N.E. 229, and cases cited. The only exception to this rule is that created by § 657 Burns 1908, Acts 1897, p. 244 and § 667 Burns 1908, Acts 1903, p. 338, § 7, under which an original bill of exceptions containing the evidence may be embraced in the transcript without copying it therein. Mankin v. Pennsylvania Co., supra, at pages 451, 452. The precipe called for copies of "the complaint, summons and the return of the sheriff thereon, all affidavits and papers filed, and the orders made by the judge, and all proceedings thereon," while the clerk certified that the transcript contains "full, true and correct copies, or the originals, of all papers and entries in said cause required by the foregoing precipe." The certificate to the transcript is copied from the form set out in § 667 Burns 1908, Acts 1903, p. 338, § 7.

When, as in this case, the transcript contains only such papers and entries as can be made a part of the transcript by copying the same therein, the words "or the originals" should be omitted from said certificate. When the original bill of exceptions containing the evidence is embraced in the transcript, that fact should be shown by the clerk's certificate, so as to identify it.

It will be observed, however, that said clerk's certificate is that the transcript contains "full, true and correct copies, or the originals, of all papers and entries in said cause required by the foregoing precipe," and as the precipe only required "copies," and not "the originals," of any paper or entry, the meaning of the clerk's certificate is that all the papers and entries in the transcript are copies, because that is what the precipe required.

It is next insisted by appellants that May, one of the defendants, "is not a member of the partnership, and did not sign the articles of copartnership, and therefore is not such an 'aggrieved party' as can appeal under § 1289 Burns 1908, § 1231 R. S. 1881, which provides that "the party aggrieved" may appeal from interlocutory orders appointing a receiver. Said May was named as one of the defendants in the complaint, and it is alleged therein that said defendant entered into a partnership with four other persons, named in the complaint. Appellee, however, claims that the "articles of copartnership," which are filed with the complaint, and made a part thereof as exhibit A, show that said agreement was not signed by May, and "that therefore it appears that he is not a member of said partnership." We do not think said exhibit, even if not signed by May, shows that he was not a member of said firm, as against the direct allegation of the complaint that he was a member. Besides, this is a suit for the dissolution of said partnership and an accounting, and for a sale of the partnership property, and it is not, therefore, founded on said articles of copartnership; and, even if filed with the complaint as an exhibit, said articles form no part thereof, and cannot be referred to, either to sustain or overthrow the complaint or any part thereof. Gum-Elastic Roofing Co. v. Mexico Publishing Co. (1895), 140 Ind. 158, 160, 161, 30 L.R.A. 700, 39 N.E. 443, and authorities cited. As May is a defendant, and the complaint alleges that all the defendants were members of said copartnership, and asks relief against them all, he, as well as his codefendants, is "aggrieved" within the meaning of § 1289, supra, and is entitled to appeal thereunder.

If all of the defendants "aggrieved" did not appeal, as claimed by appellee, this will not affect the rights of those who did appeal, because the statute gives the right of appeal to a part of several coparties. Appellants insist that the interlocutory order appointing the receiver was made before the commencement of the suit, and was therefore without jurisdiction. The summons issued in the cause and the return of the sheriff thereon are set out in the transcript. The summons is dated August 15, 1907, the same day the complaint was filed and the receiver appointed, and required the defendants to appear and answer the complaint on October 15, 1907. The return of the sheriff shows that the summons "came to hand 9 o'clock a. m. August 16, 1907," and that he served the same on each of the defendants on August 22, 1907. Appellee insists that "the summons and the return thereon form no part of the record, where all the defendants appear." § 691 Burns 1908, § 650 R. S. 1881; Miles v. Buchanan (1871), 36 Ind. 490. The record does not show that the defendants, or any of them, appeared to said suit. Taking the appeal from the interlocutory order appointing the receiver was not an appearance to the suit. The appeal was taken in vacation of the court below, and the transcript filed in this court August 22, 1907. The next term of said court, at which the defendants were required to appear and answer, commenced October 14, 1907, so that within the meaning of § 691, supra, there could be no opportunity for appellants to appear to said suit until long after the appeal was taken.

We hold, therefore, that the summons and return of the sheriff thereon are properly in the record and form a part thereof. See § 663 Burns 1908, Acts 1903, p. 338, § 3.

It has been provided by the statute, since the taking effect of the code of civil procedure in 1853, that "A civil action shall be commenced, by filing in the office of the clerk a complaint, and causing a summons to issue thereon." 2 Davis's Statutes, 1876, § 34, p. 46. It has been uniformly held by this court under said statute that the summons is not issued until delivered to the officer charged by the law with the service thereof. Fordice v. Hardesty (1871), 36 Ind. 23; Charlestown School Tp. v. Hay (1881), 74 Ind. 127; 1 Work's Practice (3d ed.), §§ 204, 247

In 1881 the legislature, with a knowledge of said construction of said provision, reenacted the same (§ 317 Burns 1908, § 314 R. S. 1881) and thereby adopted said construction. Board, etc., v. Conner (1900), 155 Ind. 484, 496, 58 N.E. 828, and authorities cited; Cain v. Allen (1907), 168 Ind. 8, 17, 18, 79 N.E. 201. It has been held under § 317, supra, that the process must be delivered to the officer authorized to serve it, before the action is deemed commenced. Alexandria Gas Co. v. Irish (1899), 152 Ind. 535, 53 N.E. 762.

As the action is not commenced until the summons is delivered to the sheriff, his return should show, as it does in this case, when the summons was received by him. 1 Works' Practice (3d ed.), § 247. The summons and the return thereon, therefore, show that the receiver was appointed the day before the action was commenced. It follows that the judge had no jurisdiction to appoint a receiver. Alexandria Gas Co. v. Irish, supra.

This is not a collateral attack on said order appointing the receiver, as claimed by appellee, but a direct attack thereon by appeal. VanFleet, Collat. Attack, § 2.

Appellee contends that this court cannot review the case upon the evidence, because there is no bill of exceptions containing the evidence in the record, and nothing to show what evidence was given at the hearing, when the interlocutory order was made appointing the receiver. Section 1288 Burns 1908, § 1230 R. S. 1881, prohibits the appointment of receivers without notice, "except upon sufficient cause shown by affidavit." This provision clearly limits the evidence at such hearing to affidavits which must be filed in the cause. This includes the complaint, if properly verified.

In Sullivan Electric, etc., Co. v. Blue (1895), 142 Ind. 407, 41 N.E. 805, this court said concerning said provision, at page 417: "Where there is an appearance by the adverse party to an application for the appointment of a receiver, or where there has been notice of such application to such party, the complaint and affidavits may not contain or state facts enough to warrant or justify the appointment of a receiver, and yet the oral evidence adduced may have been sufficient to enlarge the cause stated on paper, so as to entitle the applicant to the appointment applied for. Not so in the case of an appointment without notice. There the statute quoted has wholesomely provided that cause for an appointment of a receiver without notice to the adverse party must be shown by affidavit. That implies that it must be in writing and filed as the cause of such appointment. Thus the adverse party may know the exact facts upon which...