State v. Superior Court of Marion County

• Decision Date: 02 September 1924
• Docket Number: 24,732,24,733
• Citation: 144 N.E. 747,195 Ind. 174
• Parties: State, ex rel., v. Superior Court of Marion County et al. State, ex rel., v. Superior Court of Marion County et al
• Court: Indiana Supreme Court

144 N.E. 747

195 Ind. 174

State, ex rel., v. Superior Court of Marion County et al.

State, ex rel., v. Superior Court of Marion County et al

Nos. 24,732, 24,733

Supreme Court of Indiana

September 2, 1924

1. CONSTITUTIONAL LAW.---Receivers.---Appointment Without Notice to Persons in Possession of Property.---The 14th Amendment to the federal Constitution (39 Burns 1914) forbids that any person shall be deprived of property without due process of law, which necessarily means that one in full possession of property under claim of ownership cannot lawfully be deprived of possession without notice, a hearing and an adjudication of his rights, and a court order appointing a receiver without notice and directing such receiver to take possession of such property, without notice to, or opportunity to be heard by, those in possession, is wholly unwarranted. p. 180.

2 RECEIVERS.---For Individuals.---Insolvency Does Not Authorize.---Statute.---Courts do not have jurisdiction to appoint a receiver for the property of an individual and seize possession of it on allegations that he is indebted to the applicant for borrowed money and that he is conducting himself so as to be in danger of insolvency without a showing that the applicant has a lien on such property; 1279, cl. 5, Burns 1914, relative to the appointment of receivers for corporations, not being applicable. p. 181.

3. PROHIBITION, WRIT OF.---When May Issue.---A writ of prohibition may issue from the Supreme Court to prohibit further proceedings by a court which, having no jurisdiction to appoint a receiver for the property of an individual, has appointed a receiver therefor, who, under the direction of the court, has taken possession of the property of other persons in possession thereof under claim of ownership without notice or opportunity to be heard as to their rights and who is threatening to continue in the possession and use of said property and thereby damaging the relator. p. 181.

Original proceedings in the Supreme Court by the State of Indiana on relation of the Lebanon Discount Corporation and on relation of John Brill to obtain a writ of prohibition against the Superior Court of Marion county, the judge thereof, and others.

Writ issued.

Roscoe Hollingsworth and Means & Buenting, for petitioner.

Bamberger & Feibleman, for respondents.

OPINION

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. Fendley filed her verified complaint in the Superior Court of Marion county, Indiana, 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 ten (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 ten 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 absolute owner of nine (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 four 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 3) said relator corporation sold and transferred the absolute title and ownership of eight (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 July 2, said Dodson renewed his demand for possession by presenting it to the manager of the relator corporation, who refused it and told him that nine of said busses then were and since June 28, 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...