State ex rel. Glamack v. Horn
| Decision Date | 11 October 1950 |
| Docket Number | No. 28690,28690 |
| Citation | 94 N.E.2d 483,228 Ind. 567 |
| Parties | STATE ex rel. GLAMACK v. HORN, Special Judge. |
| Court | Indiana Supreme Court |
New & New, Indianapolis, for appellant.
Little, Little & Horn, Indianapolis, for appellee.
This is an original action filed by the relator for a writ of prohibition and mandate against the respondent to expunge the records of the court of all entries made after the filing of an affidavit for a change of judge, and to prohibit the respondent from further acting, in Cause No. B-67830, pending in the Superior Court of Marion County, Room 5, entitled 'George Glamack v. Indianapolis Kautsky's, Inc., a corporation, d/b/a, Indianapolis Jets, Inc.' A temporary writ of prohibition and an alternative writ of mandate issued.
On January 28, 1949, the relator filed his complaint on contract in two paragraphs. An affidavit for a change of judge from the regular judge of the court was filed by the defendant on February 3, 1949, and was granted and the respondent appointed. On February 7, 1949, relator filed what he designated a 'Third and Additional Paragraph of Complaint for Restraining Order and Application for Appointment of Receiver' against the defendant corporation. The special judge, on April 6, 1949, after a hearing, appointed a receiver pendente lite for the defendant corporation, which receiver thereupon qualified and is now acting. On May 16, 1950, the plaintiff filed an affidavit for a change of judge, which was sustained as to paragraphs one and two of his complaint and overruled in so far as it pertained to the ancillary receivership. On May 27, 1950, relator filed his objections to the ruling and order of the court in so far as the same apply to and affect the receivership. On May 29, 1950, the relator struck the name of one of the three attorneys nominated by the respondent.
The respondent filed his response as ordered by this court.
The sole question presented is whether or not upon the filing of an affidavit for a change of judge the ancillary receivership follows the main cause of action.
The respondent contends that the third paragraph of complaint was completely adjudicated, and therefore not subject to an affidavit for a change of judge; and, further, that the relator, by striking the name of one of the three attorneys nominated, after objecting to the refusal of the court to sustain the affidavit for change of judge, waived his rights to such change.
This court has held on numerous occasions that an application for the appointment of a receiver pendente lite is not a civil action in and by itself, but is merely ancillary to the main action. Stair v. Meissel, 1934, 207 Ind. 280, 192 N.E. 453; Maple v. McReynolds et al., 1935, 208 Ind. 338, 196 N.E. 3.
The respondent cites the case of State ex rel. v. Marion County Ct., 1948, 226 Ind. 256, 259, 79 N.E.2d 412, 414, in support of his first contention. But this case is based solely upon a verified motion for a change of venue from the county, whereas the case before the court involves a verified motion for a change of judge and not a change of court. Each involves a different rule. In the case last cited, in discussing the...
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YOUNGSTOWN S. & T. CO. v. Patterson-Emerson-Comstock of Ind.
...a receiver is merely ancillary to the principal action. Hellebush v. Blake, 119 Ind. 349, 21 N.E. 976 (1889); State ex rel. Glamack v. Horn, 228 Ind. 567, 94 N.E.2d 483 (1950); Johann v. Johann, 232 Ind. 40, 111 N.E.2d 473 (1953); Maple v. McReynolds, 208 Ind. 338, 196 N.E. 3 Therefore, con......
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...188, 102 N.E.2d 370 (1951) (proceedings for the appointment of a receiver are ancillary to a principal action); State ex rel. Glamack v. Horn, 228 Ind. 567, 94 N.E.2d 483 (1950) (application for appointment of a receiver is not an independent action but is ancillary to a main action). In th......
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...court in another county to which the change of venue is taken.' The above quoted case is quoted with approval in State ex rel. Glamack v. Horn, 1950, 228 Ind. 567, 94 N.E.2d 483. The receiver was requested pending the action as relief ancillary to the main cause. In fact, appellants state i......
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...in the case.' State ex rel. Ballard v. Jefferson Cir. Ct., 1947, 225 Ind. 174, 176, 73 N.E.2d 489, 490; State ex rel. Glamack v. Horn, 1950, 228 Ind. 567, 571, 94 N.E.2d 843; Dowd v. Harmon, 1951, 229 Ind. 254, 258, 96 N.E.2d 902; State ex rel. Krupa v. Peak, 1947, 225 Ind. 164, 73 N.E.2d 4......