Royal Acad. of Beauty Culture v. Wallace

• Citation: 81 N.E.2d 534,226 Ind. 383
• Decision Date: 07 October 1948
• Docket Number: No. 28340.,28340.
• Parties: ROYAL ACADEMY OF BEAUTY CULTURE AND ROYAL BEAUTY SHOP, Inc. v. WALLACE.
• Court: Supreme Court of Indiana

226 Ind. 383

81 N.E.2d 534

ROYAL ACADEMY OF BEAUTY CULTURE AND ROYAL BEAUTY SHOP, Inc.

v.WALLACE.

No. 28340.

Supreme Court of Indiana.

Oct. 7, 1948.

On petition for rehearing.

Petition overruled.

Original opinion, 78 N.E.2d 32.Appeal from Superior Court, Marion County; James W. Ingles, Special judge.

Owen S. Boling and Paul P. Scharffin, both of Indianapolis, for appellant.

Bachelder, Bachelder & Fife, of Indianapolis, for appellee.

Petition for Rehearing.

EMMERT, Judge.

The appellee's petition for rehearing asserts the court erred in interpreting the effect of Clause 7 of § 3-2601, Burns 1946 Replacement, as to a tort claimant being entitled to the appointment of a receiver, and her briefs allege that the opinion in this appeal is in conflict with Ratcliff v. Ratcliff, 1942, 219 Ind. 429, 39 N.E.2d 435;West v. Reeves, 1934, 207 Ind. 404, 190 N.E. 431,193 N.E. 375;Sallee v. Soules, 1907, 168 Ind. 624, 81 N.E. 587. Of course the language in the opinion on this appeal must be construed in connection with the facts decided. Bryson v. Crown Oil Co., 1916, 185 Ind. 156, 112 N.E. 1;Royal Ins. Co. v. Stewart, 1921, 190 Ind. 444, 129 N.E. 853.

In Ratcliff v. Ratcliff, supra, the action was to cancel and annul deeds for certain real estate, and for an accounting of the rents and profits. Two of the reasons for the cancellation were that the deeds were obtained by fraud and undue influence. It is to be noted that the action was in equity for the recovery of certain specific property in which the proponent alleged a present existing equitable interest. But neither the first nor second paragraph of the appellee Betty Wallace's complaint alleged any present existing or probable interest in any particular or specific property, either real or personal.

In West v. Reeves, supra, the action was brought by a creditor against a partnership which was alleged to be insolvent. In this case the appellee, Betty Wallace, was not a creditor and she did not allege or prove that the appellant corporation was insolvent, or in imminent danger of insolvency. The proof did show the corporation was solvent and discounting bills.

In Sallee v. Soules, supra, the action was to rescind the endorsements and delivery, and recover the possession of certain specific notes alleged to have been obtained from the decedent by the fraud of an insolvent holder, who was threatening to collect the notes and convert the proceeds to her own use. This alleged a present existing interest in certain specific...