State ex rel. Red Dragon Diner, Inc. v. Superior Court of Marion County, No. 1

Docket NºNo. 1
Citation239 Ind. 384, 158 N.E.2d 164
Case DateMay 01, 1959
CourtSupreme Court of Indiana

Page 164

158 N.E.2d 164
239 Ind. 384
STATE of Indiana on the relation of RED DRAGON DINER, INC.,
(an Indiana Corporation), Relator,
v.
SUPERIOR COURT OF MARION COUNTY, Indiana, Room No. 1, M.
Walter Bell, Judge of the Superior Court of Marion
County, Indiana, Room No. 1, Roy A.
Pope, Judge pro tem., Respondents.
No. 29750.
Supreme Court of Indiana.
May 1, 1959.

[239 Ind. 385]

Page 165

John D. Raikos, Indianapolis, for relator.

Joseph F. Quill and John G. McNutt, Indianapolis, for respondents.

Merle H. Miller, Donald F. Elliott, Jr., Indianapolis, amici curiae.

William R. Hunter, Winchester, for appellee. (Ross, McCord, Ice & Miller, Indianapolis, of counsel), amici curiae.

Buschmann, Krieg, DeVault & Alexander, Indianapolis, for General Grain, Inc.

ACHOR, Judge.

In this case the court appointed a receiver without notice, and relator has asked for a writ prohibiting respondents from taking any further action in said proceeding. A temporary writ has issued. Relator asserts among other things that the respondent court was without jurisdiction to appoint a receiver without notice for the reason that the complaint did not state facts which authorized the court to exercise this very extraordinary remedy.

Notice, giving a defendant opportunity to be informed regarding the nature of the action and reasonable opportunity to make a defense, is an essential element of due process. 1 Our statutes 2 which specifically limits the authority of the [239 Ind. 386] court to appoint receivers without notice is in implementation of the above constitutional guarantee. Therefore, although courts have general statutory 3 and inherent 4 authority to appoint receivers with notice, they now clearly have no authority to appoint receivers without notice, 'except upon sufficient cause shown by affidavit,' as now provided by statute. 5

This court has heretofore spelled out in specific terms the facts which must be stated and supported by affidavit in order to justify the appointment of a receiver without notice. And since the court looks only to the facts stated in the verified

Page 166

complaint in determining the necessity of dispensing with the giving of notice, the complaint must not only allege facts which support the plaintiff's right to the appointment of a receiver after notice, it must also state specific facts which establish the following ultimate facts: (1) That an emergency exists which renders interference necessary before there is time to give...

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16 practice notes
  • Skolnick v. State, No. PS
    • United States
    • Indiana Court of Appeals of Indiana
    • April 25, 1979
    ...the notice given a defendant must also give him an opportunity to make a defense. State ex rel. Red Dragon Diner v. Superior Ct. (1959), 239 Ind. 384, 158 N.E.2d 164. See also Smith v. Indiana State Board of Health (1973), 158 Ind.App. 445, 303 N.E.2d [180 Ind.App. 276] As the facts in the ......
  • Perkins, Matter of, No. 3--474A60
    • United States
    • Indiana Court of Appeals of Indiana
    • July 29, 1976
    ...opportunity to make a defense, is an essential element of due process.' 1 State ex rel. Red Dragon Diner v. Superior Ct. (1959), 239 Ind. 384, at 385, 158 N.E.2d 164, at 165. See also: Mullane v. Central Hanover B. & T. Co. (1950), 339 U.S. 306, at 314, 70 S.Ct. 652, 94 L.Ed. 865, at 873, w......
  • Anderson Federal Sav. and Loan Ass'n v. Guardianship of Davidson, No. 2-476A125
    • United States
    • Indiana Court of Appeals of Indiana
    • July 13, 1977
    ...process. [173 Ind.App. 556] See Falender v. Atkins (1917), 186 Ind. 455, 114 N.E. 965; State v. Superior Court of Marion County (1959), 239 Ind. 384, 158 N.E.2d This opportunity to be heard applies to third parties who are needed to adjudicate an issue, and whose rights might be adversely a......
  • State ex rel. Lacy v. Probate Court, Marion County, No. 30197
    • United States
    • Indiana Supreme Court of Indiana
    • May 18, 1962
    ...State ex rel. Schrenker v. Superior Court (1961), Ind., 177 N.E.2d 594; State ex rel. Red Dragon Diner, Inc., v. Superior Court (1959), 239 Ind. 384, 158 N.E.2d 164; State ex rel. Ayer v. Ewing (1952), 231 Ind. 1, 106 N.E.2d The reliance which relator places upon the above cited cases is mi......
  • Request a trial to view additional results
16 cases
  • Skolnick v. State, No. PS
    • United States
    • Indiana Court of Appeals of Indiana
    • April 25, 1979
    ...the notice given a defendant must also give him an opportunity to make a defense. State ex rel. Red Dragon Diner v. Superior Ct. (1959), 239 Ind. 384, 158 N.E.2d 164. See also Smith v. Indiana State Board of Health (1973), 158 Ind.App. 445, 303 N.E.2d [180 Ind.App. 276] As the facts in the ......
  • Perkins, Matter of, No. 3--474A60
    • United States
    • Indiana Court of Appeals of Indiana
    • July 29, 1976
    ...opportunity to make a defense, is an essential element of due process.' 1 State ex rel. Red Dragon Diner v. Superior Ct. (1959), 239 Ind. 384, at 385, 158 N.E.2d 164, at 165. See also: Mullane v. Central Hanover B. & T. Co. (1950), 339 U.S. 306, at 314, 70 S.Ct. 652, 94 L.Ed. 865, at 873, w......
  • Anderson Federal Sav. and Loan Ass'n v. Guardianship of Davidson, No. 2-476A125
    • United States
    • Indiana Court of Appeals of Indiana
    • July 13, 1977
    ...process. [173 Ind.App. 556] See Falender v. Atkins (1917), 186 Ind. 455, 114 N.E. 965; State v. Superior Court of Marion County (1959), 239 Ind. 384, 158 N.E.2d This opportunity to be heard applies to third parties who are needed to adjudicate an issue, and whose rights might be adversely a......
  • State ex rel. Lacy v. Probate Court, Marion County, No. 30197
    • United States
    • Indiana Supreme Court of Indiana
    • May 18, 1962
    ...State ex rel. Schrenker v. Superior Court (1961), Ind., 177 N.E.2d 594; State ex rel. Red Dragon Diner, Inc., v. Superior Court (1959), 239 Ind. 384, 158 N.E.2d 164; State ex rel. Ayer v. Ewing (1952), 231 Ind. 1, 106 N.E.2d The reliance which relator places upon the above cited cases is mi......
  • Request a trial to view additional results

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