Mead v. Burk

Decision Date09 May 1901
Docket Number19,016
Citation60 N.E. 338,156 Ind. 577
PartiesMead et al. v. Burk et al
CourtIndiana Supreme Court

From the Grant Superior Court.

Affirmed.

W. H Carroll and G. D. Dean, for appellants.

G. A Henry and P. H. Elliott, for appellees.

OPINION

Jordan, J.

Appellees applied for and secured by an interlocutory order of the lower court the appointment of a receiver pendente lite. This appeal is prosecuted upon the grounds that, under the facts, the trial court abused its discretion in awarding to appellees the right for the appointment of a receiver. By their complaint in the principal action appellees seek to enforce a specific performance of a written contract executed by and between them and appellants on May 13, 1899, whereby the latter sold and agreed to convey to the former a certain electric light plant together with the real estate, buildings, machinery, equipments, etc., thereunto belonging, all situated in the city of Marion, Grant county, Indiana. The facts, in brief, appear to be as follows: By the terms of the contract for the sale of this plant appellants agreed to accept as a consideration for the sale the sum of $ 25,000 in money, and $ 23,500 in paid up capital stock of the Marion Electric Company; the money and stock were to be deposited by appellee at the Marion bank for the use and benefit of appellants within five days from the date of the contract, appellants agreeing thereunder to deliver to said bank within said period of five days, for the use and benefit of appellees, proper deeds of conveyance to them of the said plant or property. Appellees, upon their part, as it appears, complied with the terms and requirements of the contract, and deposited with the bank, within the time mentioned, both the money and stock as provided, but appellants have wholly failed and refused to execute any deed of conveyance or transfer of the property in question to appellees, as under the contract they had agreed to do. After the filing of an answer by appellants, the court heard the application for the appointment of a receiver upon the pleadings and affidavits presented pro and con by the parties, and thereupon entered an order appointing a receiver to have the possession and to take charge of the property involved in the suit pending the litigation. The verified facts presented upon the part of appellees by the complaint and affidavits go to show that appellees, as previously stated, have performed and complied upon their part with the terms of the written contract, which is in evidence, but, upon the contrary, appellants have wholly failed and refused to comply with its terms upon their part, but continue to hold the possession of the property in question, and to control and operate the same. There seems to be no dispute, so far as the evidence is concerned, in respect to the fact that appellees, within the time fixed by the contract, deposited with the bank in question for the sole use and benefit of appellants the entire consideration to be paid for the property, namely, $ 48,500, part of which, as stated, was to be in money, and the remainder in the capital stock mentioned. The income arising from the said electric plant amounts to about $ 2,000 per month, which, as disclosed by the affidavits, appellants refuse to pay over to appellees and are converting the same to their own use, and that such income is being wasted. It further appears that appellants have failed and refuse to carry any insurance against fire upon the property, and that the risk is a hazardous one, and that said plant is in danger of being destroyed by fire, and thereby wholly lost to appellees. It is further disclosed that appellants are making extensions to the plant by adding thereto machinery, and that they are making other additions and improvements, none of which seem to be provided for or required under the terms of the aforesaid contract. The general charge is also made by some of the affiants that the property is liable to be injured and damaged if it is longer allowed to remain in the possession of appellants.

Counsel for the latter contend that the evidence as it appears in the record is wholly insufficient to justify the lower court in appointing a receiver, or, in other words, the gist of their contention seems to be that because there is an entire absence of evidence to show the insolvency of appellants, or that their character or circumstances are such as to render them wholly irresponsible, that, therefore, the court was not warranted in wresting from them, pending the litigation, the possession and control of the property in dispute.

It is further insisted that inasmuch as the facts in the case were presented wholly to the lower court by the means of written or documentary evidence, therefore, this court on appeal should consider itself in as good a position or attitude to weigh the evidence as was the trial court.

We are not unmindful of the rule for which appellants contend, that the appointment of a receiver is an extra ordinary or harsh remedy, and the right thereto, as a general rule, does not follow as a matter of course, but is lodged in the sound discretion of the trial court and is not awarded in a case where the remedy at law is complete or adequate. The exercise of this judicial discretion, however, under a well settled rule, is subject to review on appeal to a higher court.

The principal grounds, other than fraud, as the authorities assert, which are sufficient to warrant a court in exercising its power in the appointment of a receiver, are to the effect that in each particular case it must be made to appear that the person seeking such relief has at least a probable right or interest in the property or fund involved in the litigation, and that such property or fund, or the income thereof, is in danger of loss or injury from the neglect misconduct, or insolvency of the defendant. As a general rule, where the property in dispute appears...

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