State ex rel. Lebanon Discount Corp. v. Superior Court of Marion Cnty., s. 24732

• Decision Date: 12 September 1924
• Docket Number: 24733.,Nos. 24732,s. 24732
• Citation: 195 Ind. 174,144 N.E. 747
• Parties: STATE ex rel. LEBANON DISCOUNT CORPORATION v. SUPERIOR COURT OF MARION COUNTY et al. STATE ex rel. BRILL v. SAME.
• Court: Indiana Supreme Court

195 Ind. 174

144 N.E. 747

STATE ex rel. LEBANON DISCOUNT CORPORATION

v.SUPERIOR COURT OF MARION COUNTY et al.

STATE ex rel. BRILL

v.SAME.

Nos. 24732, 24733.

Supreme Court of Indiana.

Sept. 12, 1924.

Separate actions by the State, on the relation of the Lebanon Discount Corporation, and on the relation of John Brill against Superior Court of Marion County and others, for writs of prohibition. Writs allowed.

Roscoe Hollingsworth, of Lebanon, and Means & Buenting, of Indianapolis, for relators.

Bamberger & Feibleman, of Indianapolis, for respondents.

PER CURIAM.

In these actions each relator alleges substantially the same facts and seeks the same relief. Those facts are:

That, on July 1, 1924, one Ella H. Findley filed her verified complaint in the superior court of Marion county, Ind., alleging that she had loaned $400 to James A. Fendley, which was now past due, and the payment of which had been demanded and refused; that said defendant owned a certain bus line on which he operated some motor busses that had not been paid for in full, but were owned by him either upon conditional sale or subject to mortgage; that defendant was “neglecting his business, and the proceeds of such business are being collected by others, and are being dissipated,” and by reason thereof he was either insolvent or in imminent danger of insolvency; and that defendant was concealing himself so that no summons or notice could be served on him. Said complaint concluded with a prayer for the appointment of a receiver “for the assets of said defendant.” That thereupon the respondent Moll, as judge of said court, entered upon the records of the court an order that the respondent Dodson be and thereby was “appointed receiver to take charge of the assets of said defendant, *** that said receiver be and he hereby is authorized and directed to take charge of the 10 motor busses owned by defendant, and known as the Greenwood and Southport Bus Line” (though the number of busses had not been stated in the petition) and operate said line “with the motor busses belonging to this defendant,” and also “to take charge of the proceeds of said bus line or cash on hand belonging to this defendant which is in the hands of one Mr. Sample, *** who is a representative of the [relator] Lebanon Discount Corporation, *** who is maintaining a temporary office at the Indianapolis Bus Terminal at Indianapolis,” and further reciting that the receiver then filed his bond, that it was approved, and that he was sworn.

That, in the forenoon of the next day, said Dodson, as such receiver, went to the Indianapolis Bus Terminal and demanded of a young lady there, who was in the employ of said relator Lebanon Discount Corporation, that she turn over and deliver to him the possession of said 10 motor busses, and all the money in her hands, being the proceeds of their operation as the Greenwood and Southport Bus Line, although it is alleged that at said time her employer, the relator Lebanon Discount Corporation, was the absoluteowner of 9 of said busses and all of the money, and was in the possession of the same, and had been since June 28, 1924 (a period of 4 days), and that one. Sample was the absolute owner of the tenth bus, and was in the possession thereof, and had been since June 24, 1924. That said demand was refused, and the next day (July 3d) said relator corporation sold and transferred the absolute title and ownership of 8 of its said motor busses to relator Brill, and delivered to him the possession thereof, and on the same day said Sample also sold the absolute title to his said auto bus to Brill, and delivered to him the possession thereof. That in the afternoon of said 2d day of July said Dodson renewed his demand for possession by presenting it to the manager of the relator corporation, who refused it and told him that 9 of said busses then were, and since June 28th had been, the property and in the possession of said corporation, and the tenth was and since said date had been the property and in the possession of said Sample. That said receiver thereupon filed with said judge of the superior court a verified information stating that the said order had been issued. That after filing his bond and qualifying as receiver he had demanded of said young lady and said manager in the employ of the relator corporation the busses and money described in the order, and had shown them a copy of the order signed by the judge, but they had refused to surrender the property as above stated. That the court by said judge thereupon issued an order reciting that such information had been filed, and commanding the relator corporation and its said employés to appear on July 5, 1924, and show cause why they should not be attached and punished for contempt. That on said date they appeared and filed a motion to discharge the rule against them for the alleged reasons: (1) That the facts stated in the information did not constitute contempt; and (2) that the court had no jurisdiction in the matter, but the motion was overruled, and the...