State ex rel. Montgomery v. Superior Court of Marion County, 3

• Citation: 154 N.E.2d 375,238 Ind. 664
• Decision Date: 04 December 1958
• Docket Number: R,No. 29689,No. 3,N,3,29689
• Parties: The STATE of Indiana on the relation of William R. MONTGOMERY and Alma E. Montgomery, husband and wife, d/b/a M & L Ice Cream Manufacturing Co., Relators, v. SUPERIOR COURT OF MARION COUNTY, Indiana, Roomorman E. Brennan, Judge of the Superior Court of Marion County, Indiana, Roomespondents.
• Court: Supreme Court of Indiana

Page 375

154 N.E.2d 375

238 Ind. 664

The STATE of Indiana on the relation of William R MONTGOMERY and Alma E. Montgomery, husband and wife, d/b/a M & L Ice Cream Manufacturing Co., Relators, v. SUPERIOR COURT OF MARION COUNTY, Indiana, Room No. 3, Norman E. Brennan, Judge of the Superior Court of Marion County, Indiana, Room No. 3, Respondents.

No. 29689.

Supreme Court of Indiana.

Dec. 4, 1958.

T. Ernest Maholm, Indianapolis, for appellant.

John D. Raikos, Indianapolis, for appellee.

ACHOR, Judge.

This action involves a writ of prohibition. The facts are as follows: Relators Montgomery and Montgomery are the owners of an ice cream and drive-in eating establishment known as the M & L Ice Cream Manufacturing Company. This they leased to Richard H. Hansing and Wyota Hansing, his wife. A suit for possession, based upon the lease, was filed by the owners against the lessees in the Marion Circuit Court on June 5, 1958. Thereafter on June 10, Margaret Hansing, mother of Richard Hansing, filed an action in respondent Superior Court, asking that a temporary restraining order issue restraining the defendants Montgomery and Montgomery from taking any further action in the suit for possession pending in the Circuit Court of Marion County, and that a receiver for said real estate and personal property be appointed, all without notice. In support of this action she alleged that Richard and Wyota Hansing, as partners, were indebted to her in the sum of $2,000 on a promisory note which was past due. She further alleged that, unless so restrined, the Montgomerys would post bond in the action filed by them in the Circuit Court and take possession of the property and that, in event of such seizure of the premises, the entire shifting stock of inventory, most of which she alleged to be perishable, would be lost to her irreparable damage. The respondent thereupon issued an order restraining relators 'from taking any further action in Cause No. 79428 in the Circuit Court,' and appointed a receiver to take charge of the property, al without notice.

Relators here assert that the respondent was without jurisdiction to appoint a receiver without notice for the reason, among others, that the Curcuit Court and the Superior Court, Room 3, are courts of concurrent jurisdiction; that upon the face of the complaint the sole purpose for the subsequent action in the Superior Court was to prevent the defendants from lawfully proceeding with their action for the possession of property, which action had previously been filed in the...