Polk v. Johnson
Decision Date | 19 March 1903 |
Parties | POLK v. JOHNSON. |
Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Johnson County; Vinson Carter, Special Judge.
Final report by Grafton Johnson, as receiver of the property of James T. Polk, to which said Polk filed exceptions. From an order granting a motion to strike out the exceptions, said Johnson appealed to the Appellate Court, and from the judgment of that court reversing the judgment of the trial court the receiver further appeals, under Burns' Rev. St. § 1337j, cl. 3. Affirmed.
L. J. Hackney, C. F. Coffin, and Eldridge & Barker, for appellant. G. M. Overstreet, E. L. Branigan, R. M. Miller, H. C. Barnett, and E. A. McAlpin, for appellee.
Appellant, James T. Polk, conducted a large canning and dairy business at the town of Greenwood. His affairs became greatly involved, and he probably insolvent. Tingle, a creditor for a small amount, brought an action in the Johnson circuit court for judgment on an account, and for the appointment of a receiver. Polk answered, admitting the averments of the complaint, and confessing that a receiver ought to be appointed, whereupon the court appointed appellee, Grafton Johnson, as such receiver, who qualified and entered upon the discharge of his duties. In his amended final report as such receiver, Johnson claimed an allowance for his services in the trust the sum of $20,000. Appellant, Polk, filed exceptions to the report; subdivision 1 of exception 2 being as follows: The receiver's motion to strike out the above exception because the same did not contain facts sufficient to constitute a valid objection to the report was sustained, and the receiver allowed $9,500 for his services. This action of the court presents the controlling question in the case.
1. We assume at the outset that there is no reasonable ground for discussion upon the first proposition advanced by appellee, viz., that the litigants have no power to select a receiver for the court by private agreement, even though such agreement is based upon their views of the fitness of the one chosen, and economy to the trust in his appointment. We also take it to be generally acknowledged that the appointment of the receiver and the fixing of his compensation are judicial acts that cannot be abdicated by the court to one or both the parties to the suit. But while it must be conceded that the ultimate appointment rests solely with the court, to be determined by the exercise of his discretion, we find no principle recognized by the authorities, or supported by sound reason, that forbids the judge the freest access to the counsels and opinions of those interested in the trust, with respect to the most proper selection. Indeed, there are many reasons why the cautious judge would seek the advice of others in cases where he has imperfect knowledge of the fitness of available men, even outside of the parties in interest. There is nothing peculiar in the appointment of a receiver, that his selection must be evolved wholly from the personal knowledge and observations of the judge. The usual course of practice in the English court of chancery in such matters was to refer the selection to a master. Then interested parties were at liberty to appear before the master and nominate suitable persons, from among whom the master would choose the one whose qualifications and fitness his judgment most approved, and report his selection to the court. A similar practice also prevailed in New York prior to their adoption of the present Code of Procedure. High on Receivers, §§ 63, 64. The same considerations that induced the reference to a master under the old practice are now applicable to the judge, who is called upon to act without a reference, and who will usually give favorable consideration to one that has been agreed upon by the parties. High on...
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Alexander v. Capitol Lumber Co.
...against Alexander, the amount of which does not appear, nor does it appear that Alexander was insolvent. Polk v. Johnson (1902) 160 Ind. 292, 299, 66 N. E. 752, 98 Am. St. Rep. 274. The principal of the note sued on is $1,787, dated March 4, 1908, due in one year, with 6 per cent. interest,......
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Alexander v. Capitol Lumber Company
... ... 527 Alexander et al. v. Capitol Lumber Company No. 22,539Supreme Court of IndianaApril 28, 1914 ... From ... Johnson Circuit Court; William E. Deupree, Judge ... Action ... by the Capitol Lumber Company against Samuel V. Anderson and ... amount of which does not appear, nor does it appear that ... Alexander was insolvent. Polk v. Johnson ... (1903), 160 Ind. 292, 299, 66 N.E. 752, 98 Am. St. 274. The ... principal of the note sued on is $ 1,787, dated March 4, ... 1908, ... ...