State ex rel. Mock v. Whitley Circuit Court, 26699.
| Decision Date | 09 June 1937 |
| Docket Number | No. 26699.,26699. |
| Citation | 8 N.E.2d 829,212 Ind. 224 |
| Parties | STATE ex rel. MOCK v. WHITLEY CIRCUIT COURT et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Original action for writ of prohibition by the State, on the relation of Victor D. Mock, against the Whitley Circuit Court for the county of Whitley, state of Indiana, and Robert R. McNagny, judge thereof.
Temporary writ dissolved and petition denied.Slaymaker, Merrell & Locke, of Indianapolis, Walter Brubaker, of Warsaw, and W. Henry Eichhorn, of Bluffton, for relator.
Daniel M. Link, of Auburn, for respondents.
On the 10th day of April, 1936, the relator filed his verified petition herein for a writ of prohibition against respondents, praying that respondents be restrained and prohibited from exercising or assuming to exercise any jurisdiction, control, or authority over the relator as to certain funds or money collected or received by him other than the moneys collected and received by relator pursuant to and in compliance with the judgment of the Whitley circuit court. A temporary writ was issued on June 1, 1936, and on June 8, respondents filed return to said writ. It appears from the petition and the return thereto that on January 21, 1933, the Indiana State Bank & Trust Company of Warsaw, Ind. (hereinafter called the bank), was adjudged insolvent by the Kosciusko circuit court, and relator, Victor D. Mock, was on that day appointed receiver thereof; that he qualified and is now the duly appointed and acting receiver of said insolvent bank; that on October 27, 1933, one Eli N. Smith, a creditor of said bank, brought an action in the Kosciusko circuit court for and on behalf of himself and all other creditors of said bank against P. F. Goodrich and other stockholders, to recover from said stockholders named as defendants therein the amount of their liability to the creditors of said bank, as owners of shares of stock in said bank. Said cause was on change of venue sent to the Whitley circuit court, and on April 15, 1935, a decree and judgment was entered against the stockholders and relater was appointed special receiver, to collect and disburse, under order of the Whitley circuit court. Said judgment contained the following:
‘And the court further finds that Victor D. Mock should be appointed special receiver to receive, collect and disburse under the order of this court the moneys paid and collected upon the judgment rendered herein, as well as upon the moneys heretofore paid to him by certain of said defendants to apply upon their shareholders liability, and that his bond as such receiver should be fixed in the sum of $10,000.00.’
The following stipulation was attached at the end of said decree and judgment.
‘The undersigned attorneys of record for the parties plaintiff and defendant in the above entitled cause thereby stipulate, for and on behalf of their respective clients, that the Court enter the foregoing decree and judgment in this cause.’
That soon after relator's appointment as receiver of the bank, he proceeded to and did notify the various stockholders of their 100 per cent. liability to creditors and demanded payment. Certain stockholders pursuant to said notice paid to relator a part or all of their stock liability. Relator alleges in his petition that said money was paid to him as receiver of the bank, but respondent alleges that he has been reliably informed that said stockholders paid their stock liability to relator under an oral trust agreement, to the effect that relator would hold said money until a proper officer was appointed to receive the same and would pay such liability collections to said officer and hold said shareholders harmless from the payment of further interest, and from liability in such stockholder's suit and the judgment to be entered therein, to the extent of any such payments so made to him.
That the judgment and decree entered by the Whitley...
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