State ex rel. Nineteenth Hole, Inc. v. Marion Superior Court, Room No. 4

• Decision Date: 10 April 1963
• Docket Number: R,No. 30296,No. 4,4,30296
• Citation: 189 N.E.2d 421,243 Ind. 604
• Parties: STATE of Indiana on the relation of NINETEENTH HOLE, INC., (An Indiana Corporation), Relator, v. MARION SUPERIOR COURT, ROOM NO. 4, and Christian J. Emhardt, as Judge of Marion Superior Court, Roomespondent.
• Court: Indiana Supreme Court

Page 421

189 N.E.2d 421

243 Ind. 604

STATE of Indiana on the relation of NINETEENTH HOLE, INC. (An Indiana Corporation), Relator, v. MARION SUPERIOR COURT, ROOM NO. 4, and Christian J. Emhardt as Judge of Marion Superior Court, Room No. 4, Respondent.

No. 30296.

Supreme Court of Indiana.

April 10, 1963.

John D. Raikos, Indianapolis, Raikos, Barton, Rochford & Thomas, Indianapolis, of counsel, for relator.

Joseph C. Wallace, Indianapolis, Martz, Beattey & Wallace, Indianapolis, of counsel, for respondent.

ARTERBURN, Judge.

The relator has filed a petition for a writ of prohibition against the respondent court, asking that the court be prohibited from proceeding with the appointment without notice of a receiver for relator Corporation. We issued a temporary writ.

The facts, according to the record, show that a complaint 'For Accounting and Appointment of Receiver for Corporate Defendant' was filed on June 25, 1962. A summons was issued on the same date. There was also filed on that date an 'Affidavit for the Appointment of a Receiver without Notice.' On that date the respondent court appointed Nicholas W. Sufana as the receiver upon the affidavit filed, without any notice to the relator corporation.

It was not until almost a month later (July 23, 1962) that the appointment without notice was challenged by a motion to vacate the order, although the summons had been served and the relator undoubtedly had notice on the day following the appointment (June 26, 1962). The record fails to show any ruling on the motion to vacate. The petition for a writ of prohibition was thereafter filed on August 6, 1962, in this court, two days prior to the date fixed by the trial court for a hearing on the receivership.

There are a number of reasons why the writ of prohibition must be denied. First, it appears from the record that a considerable length of time transpired before the relator saw fit in any way to challenge the jurisdiction of the trial court to appoint a receiver without notice. No explanation or excuse is offered for this delay. Forty-two days after the appointment and just two days before the date set for a hearing on the merits of the appointment, the relator came into this court asking for a writ of prohibition. Had relator waited two more days, it would have received what it was insisting upon, a hearing on the merits, and any question on the previous appointment without notice would have been rendered moot.

Previous decisions of this court have held that actions equitable in nature, such as original actions of mandate and prohibition, must be expeditiously filed. State ex rel. Hashfield v. Warrick Cir. Ct. (1961), 242 Ind. 318, 178 N.E.2d 734; State ex rel. City of Marion et al. v. Grant Cir. Ct. (1959), 239 Ind. 315, 157 N.E.2d 188; State ex rel. American Fletcher etc. v. Lake S. Ct. (1961), 242 Ind. 118, 175 N.E.2d 3.

We are not impressed with any urgency for the issuance of the extraordinary writ by this court where such unreasonable delay in objecting to the authority of the trial court is revealed. Extraordinary writs are issued only in cases of emergency. It is not the policy of this court to issue the extraordinary writs against lower courts on slight occasions, but only in special cases to prevent impending injury. The relief sought must be clear. Whether a writ should be issued rests largely in the sound discretion of the Supreme Court. State ex rel. v. Gleason (1918), 187 Ind. 297, 119 N.E. 9; Flanagan, Indiana, Trial and Appellate Practice, § 2985, p. 448.

The statute provides that an appeal must be taken by the aggrieved party within ten days after the appointment. Burns' § 3-2603. We have held that this ten day period runs from the time the aggrieved party has notice of the appointment. Fagan, etc. et al. v. Clark et al. (1958), 238 Ind. 22, 148 N.E.2d 407; McConnell v. Fulmer (1952), 230 Ind. 576, 103 N.E.2d 803, 105 N.E.2d 817.

The record is usually very short and takes no longer to prepare for an appeal than for a writ of prohibition.

The statute (Burns' § 3-2603) provides that an appellant may file an appeal bond which vacates the receivership pending the appeal.

Furthermore, a review on appeal is broader than in prohibition. In the former, this court is not limited to the mere question of jurisdiction, but may review any abuse of discretion of the trial court, including any failure to require the giving of a bond for damages if the receivership appointment without notice and hearing is wrongful. Equity grants a trial court the authority to require a bond as a condition to an appointment of a receiver without notice.

'In the absence of statute, it rests within the discretion of the court to require an applicant for the appointment of a receiver to give bond for the damages resulting if the appointment is revoked or set aside.' 75 C.J.S. Receivers § 62, p. 717.

With the requirement of an indemnifying bond for damages, if the appointment of a receiver without notice is wrongful, a review by appeal becomes an adequate remedy.

In any event, it is fundamental that a writ of prohibition cannot be used as a short-cut for an appeal.

'Far too frequently writs of prohibition or mandate in this court are sought to be used as a short-cut to an appeal on the merits. This cannot be done.' State ex rel. Durham v. Marion Circuit Court (1959), 240 Ind. 132, 162 N.E.2d 505.

In State ex rel. Local Union No. 414 v. Allen C. C. (1960), 240 Ind. 518, 164 N.E.2d 648, a writ of prohibition was sought against a trial court which had issued a restraining order without notice. There we said: (164 N.E.2d p. 650)

'As the record discloses the remedy of appeal was available to defendantsrelators to raise the questions they later have sought to raise in this original action for writ of prohibition, we must decline to entertain these proceedings.' State ex rel. City of Indianapolis v. Brennan, Judge (1952), 231 Ind. 492, 109 N.E.2d 409.

Neither can the writ be used as a legal vehicle for testing the sufficiency of a complaint or petition.

'A petition for a writ of prohibition or mandate against a trial court may not be used as a demurrer to test the complaint in the action pending below for the purpose of determining whether or not it states facts sufficient to constitute a cause of action. A court does not lose jurisdiction to consider a defective or bad complaint. The duty resides with the trial court in exercising its jurisdiction to rule upon the sufficiency of a complaint. It has the latitude to err, which action may properly be reviewed by us upon appeal.' State ex rel. Saylor Development Co. v. Circuit Court (1960), 240 Ind. 648, 167 N.E.2d 470.

Likewise, we have said many times that the mere fact that a trial court erroneously decides a question presented does not deprive it of jurisdiction. If a court decides erroneously, the remedy is through an appeal. Jurisdiction includes the power to decide erroneously as well as correctly. State, etc. v. Marion Cir. Ct., etc. (1959), 239 Ind. 327, 157 N.E.2d 481; State ex rel. Durham v. Marion Circuit Court (1959), 240 Ind. 132, 162 N.E.2d 505.

The case of State ex rel. Red Dragon Diner v. Superior Ct. (1959), 239 Ind. 384, 158 N.E.2d 164 is not in point. The petition in that case contained only the bare conclusions that the defendant 'is insolvent and owes a large amount of indebtedness * * *.'

In this case we find the application for a receiver specifies that the inventory and stock is being dissipated and wasted through mismanagement and that the defendant in charge of the relator corporation, Roy C. Robinson, is absenting himself from the place of business. Detailed allegations are made with reference to the acts that are destroying the business, which acts will continue unless some immediate action is taken.

There is still a further reason why the writ must be denied. Rule 2-35 has not been complied with except as to the filing of a motion to vacate the order. No ruling of the court has been obtained on the motion, which is still pending as far as the record shows. The relator has filed an ,'affidavit certifying compliance with Rule 2-35.' This affidavit by the relator's attorney contains no certification of any court records. It merely states that 'legal authorities were called to the attention of the respondent' judge in a 'personal interview on the 3rd day of August, 1962.' It is further stated that the respondent judge refused to sustain relator's motion to vacate the order appointing the receiver without notice, but there is no official record supporting this claim. No explanation or excuse is offered as to why the court did not make a record of its ruling. A court speaks only through its record. There is no showing that the judge refused to make a record. Therefore, we do not have a case where a judge has refused to make a record and proof must be made...