McFarland v. Pierce

• Decision Date: 08 January 1897
• Citation: 151 Ind. 546,45 N.E. 706
• Court: Indiana Supreme Court
• Parties: McFARLAND et al. v. PIERCE et al.

151 Ind. 546

45 N.E. 706

McFARLAND et al.

v.PIERCE et al.¹

Supreme Court of Indiana.

Jan. 8, 1897.

Appeal from circuit court, Randolph county; A. O. Marsh, Judge.

Action by Charles W. Pierce and others against Abraham W. McFarland and others. From a judgment appointing a receiver, certain defendants appeal. Affirmed.

Engle & Parry, for appellants. Thompson, Canaday & Focht, for appellees.

HACKNEY, J.

The appellees sued the appellants Abraham W. McFarland, the Ridgeville Milling Company, a corporation, and two others, seeking an accounting by said McFarland and others, as the officers and managers of said company, and the appointment, without notice, of a receiver, pending the litigation, to take the custody of the property, books, and effects of said milling company. The circuit court, on April 20, 1896, appointed a receiver as prayed; and on the 21st day of April, as shown by the bill of exceptions, but on the 22d day of April, as shown by the order-book entry, said McFarland and said milling company entered a special appearance “for the special purpose of making objections and taking exceptions to the appointment of a receiver.” Upon the face of the documents filed by them in entering such appearance, and in the objections, it is recited that the same were filed April 20, 1896, and it is recited also that said receiver had then been appointed. Said objections were overruled; an exception was reserved; and this appeal was perfected. The assignment of error is by “the appellants Abraham W. McFarland and the Ridgeville Milling Company” jointly, and of the numerous specifications of error counsel say they “bring in review before this court the sufficiency of the complaint to justify the appointment of a receiver ex parte without notice.”

Appellees object to a consideration by us of any question assignable by said milling company alone, and they insist that said company alone could complain of the appointment of a receiver, and, since it has not separately assigned error, no question arises for decision. By Rev. St. 1894, § 1245 (Rev. St. 1881, § 1231), the right of appeal from the appointment of a receiver is given only to “the party aggrieved.” Our first inquiry, therefore, is as to whether, in a legal sense, McFarland was aggrieved by said appointment, for, if he was not, and the milling company has joined him in the assignment of error, when there is no available error as to him, there can be no joint assignment made available. Medical College v. Commingore, 140 Ind. 296, 39 N. E. 744;Goss v. Wallace, 140 Ind. 541, 39 N. E. 920;Armstrong v. Dunn, 143 Ind. 433, 41 N. E. 540. The allegations of the complaint sought nothing with reference to the separate property of McFarland, and nothing with reference to joint property of McFarland and the milling company. McFarland was a stockholder in the milling company, and was charged with misconducting the affairs of said company, and appropriating its moneys to his own uses. The allegations as to an accounting are not before us to determine McFarland's interest in the suit, inasmuch as that branch of the controversy has not reached this court. As a stockholder, his interest in the company was held in common with the other stockholders; and the interests, as such, of all stockholders, were represented in and by the corporation defendants. He was not a party to the complaint, because he was a stockholder; and, for the purposes of the appointment of a receiver, it cannot be maintained that, as a stockholder, he was a proper or necessary party. He was made a party to respond to the primary allegations of the complaint and cause of action wherein he was charged personally with bad faith, and it was sought to require him to account and pay to the use of the company the funds belonging to and withheld from it. “The word ‘aggrieved,’ in the statute refers to a substantial grievance, a denial of some personal or property right, or the imposition upon a party of a burden or obligation.” People...