State ex rel. Indianapolis Produce Terminal, Inc. v. Davis

• Decision Date: 21 May 1962
• Docket Number: 30222,Nos. 30221,s. 30221
• Citation: 243 Ind. 55,182 N.E.2d 589
• Parties: The STATE of Indiana on the Relation of INDIANAPOLIS PRODUCE TERMINAL, INC., Relator-Petitioner, v. The Honorable George B. DAVIS, Judge of the Hancock Circuit Court, and The Hancock Circuit Court, Respondents. The STATE of Indiana on the Relation of PRODUCERS REALTY CORP., Relator-Petitioner, v. The Honorable George B. DAVIS, Judge of the Hancock Circuit Court, and the Hancock Circuit Court, Respondents.
• Court: Indiana Supreme Court

Page 589

182 N.E.2d 589

243 Ind. 55

The STATE of Indiana on the Relation of INDIANAPOLIS PRODUCE

TERMINAL, INC., Relator-Petitioner, v. The Honorable George B. DAVIS, Judge of the Hancock Circuit

Court, and The Hancock Circuit Court, Respondents.

The STATE of Indiana on the Relation of PRODUCERS REALTY

CORP., Relator-Petitioner, v. The Honorable George B. DAVIS, Judge of the Hancock Circuit

Court, and the Hancock Circuit Court, Respondents.

Nos. 30221, 30222.

Supreme Court of Indiana.

May 21, 1962.

John C. O'Connor, Ruckelshaus, O'Connor & Ruckelshaus, Patrick J. Fisher, Indianapolis, Ging & Free, Greenfield, for relator-petitioner.

George B. Davis, pro se.

ARTERBURN, Judge.

These two above entitled cases are combined for the purpose of this decision and opinion, since they involve the same question of law and substantially the same set of facts.

In both cases the petitioners ask for a writ of prohibition against the respondent court, directing it not to proceed further in the appointment of a receiver in two causes of action: one in the case of Paul T. Rochford v. Producers Realty Corp., No. 30537 and the other Paul T. Roch-ford v. Indianapolis Produce Terminal, Inc., No. 30536, each pending in the Hancock Circuit Court. We issued a temporary writ in each case.

It is shown to this court that prior to the beginning of the two cases (which came to the Hancock Circuit Court on change of venue from the Marion Circuit Court) that there had previously been commenced in Marion Superior Court No. 3 on July 17, 1956, Cause No. C-20623, a suit entitled Carl M. Geupel Construction Company v. Indianapolis Produce Terminal, Inc. and Producers Realty Corporation (the named relators in each of the cases now before us); that at the time of the filing of the suit in the Marion Superior Court No. 3 an application was also filed for the appointment of a receiver of both of the relator concerns; that said case (as a result of a change of venue) is now pending in the Shelby Circuit Court, being Cause Number 28895 on the issue for the appointment of a receiver of each of the relator concerns.

The relators, claiming there is a conflict of jurisdiction, filed pleas in abatement with the Honcock Circuit Court where the two cases filed by Paul T. Rochford above referred to are pending and in each of which cases a receiver is also requested. The Hancock Circuit Court sustained a demurrer to each of the pleas in abatement.

The Rochford cases were each filed subsequently, namely, upon December 30, 1960. It is contended that the Shelby Circuit Court, the first court in point of time assuming jurisdiction of the subject-matter, has jurisdiction to the exclusion of the Hancock Circuit Court and all other coordinate and equal courts. This is the general principle under which we must proceed in the consideration of the issues here.

In State ex rel. McClure etc. v. Marion Superior Ct. etc. (1959), 239 Ind. 472, 476, 158 N.E.2d 264, 266, it is stated:

'The Supreme Court of this State has imposed upon it by statute the duty of determining a dispute or conflict in jurisdiction between lower courts. Burns' Annotated Statutes § 3-2201, 1946 Replacement (Supplement).

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'There is in this case without question a conflict of assumed jurisdiction between two courts of equal and coordinate powers. It is well settled in such instances that the first court assuming such jurisdiction has such jurisdiction, to the exclusion of any other equal or coordinate court. State etc. v. Marion Cir. Ct. etc., 1959, 239 Ind. 327, 157 N.E.2d 481; State ex rel. Montgomery v. Superior Ct. etc., 1958, 238 Ind. 664, 154 N.E.2d 375, 376; State ex rel. Seal v. Superior Court of Knox County, 1943, 221 Ind. 36, 41, 46 N.E.2d 226.'

In Coleman v. Callon (1916), 184 Ind. 204, 206, 110 N.E. 979, we stated:

'It is conceded that both courts had authority to appoint a receiver and the question narrows down to the proposition which court had first taken jurisdiction of the matter of the appointment of a receiver. There is no question but that where two tribunals possess concurrent and complete jurisdiction of a subject-matter, the one before which proceedings are first instituted and which thus acquires jurisdiction of the subject has the jurisdiction to the exclusion of all other tribunals.' See also: Givan, Rec. v. Marion Superior Court (1934), 207 Ind. 74, 191 N.E. 144; State ex rel. Montgomery v. Sup. Ct. etc. (1958), 238 Ind. 664, 154 N.E.2d 375.

It appears to us rather decisively that the jurisdiction of the matter before us is with the Shelby Circuit Court, the court which first had jurisdiction of the matter of the receivership, and that jurisdiction continues with the first court until a final disposition is made thereof. 73 C.J.S. Prohibition § 11(c), p. 46; 14 Am.Jur., Courts, § 243, pp. 435, 436.

The respondent claims that there is no conflict of jurisdiction unless (1) the issues triable are the same; (2) the parties in each cause are the same.

It is true the party plaintiffs are not the same in the case in the Shelby Circuit Court as in the two cases in the Hancock Circuit Court, but they both seek to seize the same property of the same defendants, and this property is the subject-matter of all the actions. A receivership proceeding concerns itself with certain specific property. It is partially an action in rem, as well as an action in personam. If two courts attempt to seize the same property, it naturally results in a conflict of jurisdiction. There are cases, therefore, although the parties may differ, where the subject matter or res is the same, which results in an unseemly conflict of jurisdiction where two courts attempt to assume control over the same property.

In 14 Am.Jur., Courts, § 245, p. 438 it is said:

'It simply demands as a matter of necessity, and therefore of comity, that when the object of the action requires the control and dominion of the property involved in the litigation,...