Rotan v. Cummins, 29486

• Decision Date: 28 February 1957
• Docket Number: No. 29486,29486
• Citation: 236 Ind. 394,140 N.E.2d 505
• Parties: Owen ROTAN, Marshall Wilson, Appellants, v. Roscoe CUMMINS, Appellee.
• Court: Indiana Supreme Court

Page 505

140 N.E.2d 505

236 Ind. 394

Owen ROTAN, Marshall Wilson, Appellants, v. Roscoe CUMMINS, Appellee.

No. 29486.

Supreme Court of Indiana.

Feb. 28, 1957.

Phillip J. Badell, Rushville, Paul T. Rochford, Rochford, Blackwell & Rochford, Indianapolis, for appellants.

James S. Foster, Rushville, for appellee.

PER CURIAM.

This is an appeal from an order appointing a receiver without notice in an action for dissolution of a partnership and an accounting. The material portions of the verified complaint and affidavits filed in support of the prayer for appointment of a receiver without notice allege in substance the following:

On or about November 1, 1955, appellee and appellants entered into a partnership for the purpose of operating a farm in Rush County. Under the terms of the agreement appellee was to furnish all machinery and equipment, gasoline and oil and one-half of the fertilizer and seed used. Appellant Wilson was to furnish the labor for the production of crops and appellant Rotan was to 'make available' the farm and to pay for the other half of the seed and fertilizer. Appellee was to receive 25%, appellant Wilson 25% and appellant Rotan 50% of the proceeds of the operation. The agreement was fully performed by all involved until about September 28, 1956. Crops of corn, soy beans and oats were planted and cultivated; the oats crop was harvested and sold and the proceeds divided according to the agreement. On or about September 28, 1956, appellant Wilson, acting for himself and appellant Rotan, informed appellee that he and Rotan did not intend to allow him to participate in any further profits of the farm operation, and ordered him to stay off the partnership farm. In a conversation ten days prior to this event Wilson informed appellee's attorney that he did not intend to allow appellee to participate in the proceeds of the partnership operation.

The complaint was filed on October 1, 1956, and summons issued on the same day. The complaint alleged that the assets of the partnership at that time consisted of 25 acres of growing soy beans, which were then ready to be harvested, and 80 acres of growing corn, which would be ready to be harvested about November 1, 1956. It alleged further that the growing crops could not be sold without great loss to all parties, that said crops had to be tended, cultivated and harvested and that appellants, if permitted, would harvest the crops and appropriate all proceeds to their own use. Finally, it alleged that notice to appellants would jeopardize the safety and custody of the property for which a receiver was sought.

The policy against the appointment of receivers '* * * until the adverse party shall have appeared, or shall have had reasonable notice of the application for such appointment, * * *.' is of long standing in this state. Acts 1881 (Spec. Sess.), ch. 38, § 253, p. 240, § 3-2602, Burns' 1946 Repl. Such appointments are prohibited except '* * * upon sufficient cause shown by affidavit,' and, though the language of the exception is general, the long history of its judicial construction shows it to be extremely narrow. The reasons for such a policy are not obscure or difficult, have been repeatedly explained, and need not be discussed here. Meyering v. Petroleum Holdings, Inc., 1949, 227 Ind. 313, 321, 86 N.E.2d 78.

This court has never questioned or deviated from the proposition that a receiver without notice cannot be appointed unless the moving party shows by verified complaint or affidavit that neither the ordinary procedure for appointment, which requires notice to be given, nor an attachment or restraining order until notice can be given and a receiver appointed is an adequate remedy. Second Real Estate Investments, Inc., v. Johann, Jr., 1953, 232 Ind. 24, 111 N.E.2d 467; Johann, Sr. v. Johann, Jr., 1953, 232 Ind. 40, 111 N.E.2d 473; Meyering v. Petroleum Holdings, Inc., 1949, 227 Ind. 313, 86 N.E.2d 78, supra; Hametic Lodge Bldg. Ass'n, Inc., v. Esters, 1947, 225 Ind. 118, 73 N.E.2d 46; Morris v. Nixon, 1945, 223 Ind. 530, 62 N.E.2d 772; Largura Construction Co., Inc., v. Super-Steel Products Co., 1939, 216 Ind. 58, 22 N.E.2d 990; H-A Circus Operating Corp. v. Silberstein, 1939, 215 Ind. 413, 19 N.E.2d 1013; Hoosier National Life Ins. Co. v. Gary Electric Co., 1938, 214 Ind. 597, 17 N.E.2d 85; Hawkins v. Aldridge, 1937, 211 Ind. 332, 7 N.E.2d 34, 109 A.L.R. 1205; Tormohlen v. Tormohlen, 1936, 210 Ind. 328, 1 N.E.2d 596; Indiana Merchants' Protective Ass'n, Inc., v. Little, 1930, 202 Ind. 193, 172 N.E. 905; Hizer v. Hizer, 1929, 201 Ind. 406, 169 N.E. 47; Tucker v. Tucker, 1924, 194 Ind. 108, 142 N.E. 11; Ledger Publishing Co. v. Scott, 1923, 193 Ind. 683, 141 N.E. 609; Orin Jessup Land Co. v. Lannes, 1923, 193 Ind. 645, 141 N.E. 454; Kent Avenue Grocery Co. v. George Hitz & Co., 1918, 187 Ind. 606, 120 N.E. 659; Henderson v. Reynolds, 1907, 168 Ind. 522, 81 N.E. 494, 11 L.R.A., N.S., 960; Continental Clay & Mining Co. v. Bryson, 1907, 168 Ind. 485, 81 N.E. 210.

Cases meeting that standard in this court have been few. Meyering v. Petroleum Holdings, Inc., 1949, 227 Ind. 313, 86 N.E.2d 78, supra, illustrates the kind of circumstances which must...