Ryder v. Shea
| Decision Date | 09 March 1915 |
| Docket Number | 22,460 |
| Citation | 108 N.E. 104,183 Ind. 15 |
| Parties | Ryder et al. v. Shea et al |
| Court | Indiana Supreme Court |
From Vigo Circuit Court; Charles M. Fortune, Judge.
Action by Albert Shea and another against David Ryder and another. From an interlocutory order appointing a receiver, the defendants appeal.
Reversed.
Walker & Blankenbaker and McNutt, Wallace & Sanders, for appellants.
Elmer F. Williams and Roach & Ballard, for appellees.
Appellees brought this action in ejectment against appellants to recover possession of certain described real estate in the city of Terre Haute, and for damages for its unlawful detention. Appellees also petitioned for the appointment of a receiver without notice to take charge of the property in question and from an interlocutory order making such an appointment this appeal is prosecuted.
The petition for the appointment of a receiver alleges in substance that on June 8, 1908, one Frederika Zimmerman was the owner of the real estate in question and on that date executed and delivered to the defendant, Terre Haute Brewing Company, a lease on the real estate and the building situated thereon for a period of five years, from August 27, 1908, to August 27, 1913, with power to sublet the premises at the option of the Terre Haute Brewing Company; that on the day -----, 1908, said company sublet the premises to the defendant, David Ryder, for the period covered by the lease; that Ryder has since had and held possession of the real estate only under and by virtue of the lease from the brewing company, which expired August 27, 1913; that since August 27, 1913, neither the Terre Haute Brewing Company nor David Ryder has had any interest in or right to the possession of said real estate. The complaint further alleges that on the day of -----, 1913, Frederika Zimmerman executed and delivered to appellees a lease in writing on said real estate and the buildings thereon situated for a period of five years from August 28, 1913, to August 28 1918, both inclusive; that under and by virtue of the last mentioned lease, appellees are now, and since August 28 1913, have been entitled to the possession of the real estate and the building thereon, of which fact appellants had knowledge prior to August 28, 1913. That the building on the real estate consists of a first, or ground floor of two storerooms, one of which is specially fitted up for occupation by a saloon for the sale of intoxicating liquors and the other for occupation by a restaurant, and a second story which is subdivided into small apartments, or rooms for occupation as living rooms and other purposes; that Ryder is now, and since August 27, 1913, has been conducting a saloon, a restaurant and lodging apartments in the building, and is now and ever since that date has been collecting and appropriating to his own use the income, proceeds, rents and profits from each of said businesses, and will continue so to collect and appropriate such income, proceeds, rents and profits unless a receiver is appointed as prayed for. It is also alleged that appellant Ryder is threatening to continue to retain possession of said property and conduct said businesses, contrary to the rights of appellees, and that if he is permitted to continue in possession of the premises, pending a decision in the principal action in ejectment and to collect the income, proceeds, rents and profits as aforesaid, appellees will suffer great and irreparable loss and damage for which they will have no recourse either at law or in equity. The petition also charges that Ryder is not caring for or fostering the trade and custom of the saloon, restaurant and lodging apartments but is dissipating and losing the same, all to appellee's damage. The pleading as a whole is lengthy and filled with detail, but, in view of the conclusion herein reached, we deem it unnecessary to set out in this opinion more than a concise statement showing the theory of the petition and the facts which, it is charged, necessitated the appointment of a receiver without notice.
Appellees meet this appeal at the outset with the contention that as appellants entered no exception to the order of the trial court in appointing the receiver, no question is properly presented at this time. Ordinarily, an exception is taken either when the trial court has made a ruling over a party's objection or when the court has refused to grant a motion, petition or other request of a party. In each instance the party whose objection is overruled or whose request is denied is in court, at least for the purposes of the action complained...
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