State ex rel. Indianapolis Dairymen's Co-op. v. Marion Circuit Court

• Decision Date: 21 May 1948
• Docket Number: 28381.
• Citation: 79 N.E.2d 412,226 Ind. 256
• Parties: STATE ex rel. INDIANAPOLIS DAIRYMEN'S CO-OP., Inc. v. MARION CIRCUIT COURT et al.
• Court: Indiana Supreme Court

79 N.E.2d 412

226 Ind. 256

STATE ex rel. INDIANAPOLIS DAIRYMEN'S CO-OP., Inc. v. MARION CIRCUIT COURT et al.

No. 28381.

Supreme Court of Indiana

May 21, 1948

Davis Baltzell, Hartsock & Dongus, of Indianapolis, for appellants.

Charles K. McCormack, Joe Rand Beckett, Irving M. Fauvre and Michael L. Fansler, all of Indianapolis, for appellees.

EMMERT Chief Justice.

The issues in this original action arise out of litigation in the trial court which has this day been considered by this court in appeal No. 28369 entitled Indianapolis Dairymen's Cooperative, Inc. v. Bottema, 79 N.E.2d 399, and appeal No. 28386 entitled Indianapolis Dairymen's Cooperative, Inc., et al. v. Bottema, 79 N.E.2d 409.

The appellees' amended complaint, filed November 6, 1946, was designated as an 'amended complaint for accounting and the appointment of a receiver.' The prayer thereof, in addition to seeking the appointment of a receiver, asks that the 'Indianapolis Dairymen's Co-operative, Inc., and Carl Hedges, two of the defendants herein, and any and all of the employees of said association be ordered and required to make a full and complete accounting of all moneys of the association received by said association, Carl Hedges or any other employees of said association and also all money due the association. And that these plaintiffs and all others in a similar position be given judgment for such amount as may be found due them and an injunction against continuing improper expenditures, * * *.'

After the appointment of a receiver pendente lite, the appellants filed a verified motion for change of venue from the county. The next day appellees filed an application to maintain the status quo. While the issue on a temporary injunction was yet pending, the trial court overruled appellants' verified motion for change of venue from the county. A writ of temporary prohibition has been granted prohibiting the trial court from taking further proceedings in the cause, except to grant the motion for change of venue from the county and to proceed with the selection of a county to which the venue shall be changed, and as a part of said writ, an alternate mandate issued requiring the trial court to grant the the motion for change of venue from the county and to proceed with the selection of the county to which the venue shall be changed, or show cause why the temporary writ of prohibition and the alternate mandate should not be made permanent.

The principal relief prayed in the amended complaint was not the appointment of a receiver, but the relief to be afforded by a...