State ex rel. Busick v. Ewing

Decision Date13 December 1951
Docket NumberNo. 28804,28804
PartiesSTATE ex rel BUSICK et al. v. EWING, Judge of Spencer Circuit Court, et al.
CourtIndiana Supreme Court

Paul F. Mason, Rockport, William L. Mitchell, Evansville, for relators.

L. N. Savage, Robert S. Wagoner, Rockport, for respondents.

JASPER, Judge.

This is an original action against the respondent, Spencer Circuit Court, and the Judge thereof, to prohibit the respondent from proceeding further in the matter of 'Gene Barger et al. v. Caleb A. Busick et al.,' being cause numbered 4587 in the Spencer Circuit Court, and designated 'Petition in Equity for the Appointment of a Receiver Without Notice.' A temporary writ of prohibition was issued by this court.

The certified transcript of all the papers, pleadings, and entries shows that said petition in equity for the appointment of a receiver without notice was filed as a separate cause of action on the 25th day of May, 1951, and that summons was issued to the sheriff, coming into his hands on May 26, 1951, which summons was served on Caleb A. Busick on the same day.

The petition for the appointment of receiver was filed as a separate action, and the appointment of a receiver was the sole relief therein sought by the plaintiffs. This case comes within the general rule that proceedings for the appointment of a receiver are ancillary in their nature and must be supported by a principal action. State ex rel. Glamack v. Horn, 1950, 228 Ind. 567, 94 N.E.2d 483; Maple v. McReynolds et al., 1935, 208 Ind. 338, 196 N.E. 3; West v. Reeves, 1934, 207 Ind. 404, 190 N.E. 431, 193 N.E. 375; Alexandria Gas Co. v. Irish, 1899, 152 Ind. 535, 53 N.E. 762; Pressley v. Harrison et al., 1885, 102 Ind. 14, 1 N.E. 188; 2 Gavit's Ind. Pleading and Practice, § 236, p. 1743; 1 Clark, Receivers (2d ed. 1929), § 75, p. 98. To confer jurisdiction upon the court in this case, it is therefore necessary that a principal action be filed to which the receivership is ancillary.

Before the respondent could acquire jurisdiction to appoint a receiver pendente lite, a principal cause of action must have been commenced by the filing of the same and the placing of a summons in the hands of the sheriff. Here, the certified transcript of the record shows that the complaint for the appointment of receiver was filed on May 25, 1951, and that a receiver was appointed on the same day. The sheriff's return to the summons shows that it did not come to his hands until the 26th day of May, 1951, the day after the appointment of the receiver. Even if the petition could be interpreted as being ancillary to a main cause of action, the court would have no jurisdiction to appoint a receiver for the reason that the action was not commenced until the summons was in the hands of the sheriff. Tucker v. Tucker, 1924, 194 Ind. 108, 142 N.E. 11; Marshall v. Matson, 1908, 171 Ind. 238, 86 N.E. 339; Pressley v. Harrison et al., supra.

The respondent, in his return, attempts to impeach the record by an affidavit of the deputy sheriff and the affidavits of attorneys for the petitioners in the receivership. If the summons and the return thereon do not speak the truth, necessary proceedings could have been taken to have them do so. They cannot be collaterally impeached as herein attempted. The transcript having been certified by the Clerk of the Spencer Circuit Court, the certificate imports absolute verity. Marshall v. Matson, supra.

The relators further contend that the petition for the appointment of receiver is an attempt to have a receiver appointed for the property of individuals without showing that the petitioners have a lien or legal interest of any kind on or in the property. It was stated in State ex rel. v. Superior Court,...

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9 cases
  • State ex rel. Public Service Commission v. Marion Circuit Court
    • United States
    • Indiana Supreme Court
    • 25 Enero 1952
    ... ... State ex rel. v. Superior Court of Marion County, 1924, 195 Ind. 174, 144 N.E. 747. This principle was recently affirmed in State ex rel. Busick v. Ewing, Judge, Ind.1951, 102 N.E.2d 370. When the legislature by statute places the exclusive right in the bank commission to apply for the ... ...
  • State ex rel. Ayer v. Ewing, 28878
    • United States
    • Indiana Supreme Court
    • 20 Junio 1952
    ... ... 5 Even in equity cases not [231 Ind. 24] involving ... Page 451 ... statutory causes of action this court has held the trial court without jurisdiction if the complaint fails to allege facts to give equity jurisdiction of the subject matter. State ex rel. Busick v. Ewing, Ind.Sup., 1951, 102 N.E.2d 370; State ex rel. Surprise v. Porter Circuit Court, 1948, 226 Ind. 375, 80 N.E.2d 107; State ex rel. v. Superior Court of Marion County, 1924, 195 Ind. 174, 144 N.E. 747; State ex rel. Marion County Democratic Committee v. Marion Superior Court, 1938, 214 Ind ... ...
  • State ex rel. Anderson-Madison County Hospital Development Corp. v. Superior Court of Madison County, ANDERSON-MADISON
    • United States
    • Indiana Supreme Court
    • 4 Junio 1964
    ... ... State ex rel. Caulfield v. Sartorius (1939), 344 Mo. 919, 130 S.W.2d 541; State ex rel. Busick v. Ewing (1951), 230 Ind. 188, 102 N.E.2d 370; State, ex rel., v. Superior Court (1924), 195 Ind. 174, 144 N.E. 747 ...         Directing ... ...
  • KeyBank Nat. Ass'n v. Michael
    • United States
    • Indiana Appellate Court
    • 31 Octubre 2000
    ... ... Court shall deliver a copy of this Order to the Indiana Secretary of State ... The Court further finds and concludes that the Corporation's ... Cf. State ex rel. Busick v. Ewing, 230 Ind. 188, 102 N.E.2d 370 (1951) (proceedings for ... ...
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