Steinbrenner Rubber Company v. Duncan
| Decision Date | 16 March 1927 |
| Docket Number | 12,784 |
| Citation | 155 N.E. 625,86 Ind.App. 218 |
| Parties | STEINBRENNER RUBBER COMPANY ET AL. v. DUNCAN, RECEIVER, ETC |
| Court | Indiana Appellate Court |
Rehearing denied May 19, 1927.
From Marion Superior Court (A 35,006); Sidney S. Miller, Judge.
Application by the E. G. Spink Agency for the appointment of a receiver for a stock of merchandise belonging to Adelbert S. Burdick doing business under the trade name of the "Service Tire Company," on which Russell V. Duncan was appointed receiver. The Steinbrenner Rubber Company and another were allowed to intervene and filed separate petitions to have the property in the hands of the receiver turned over to them which were denied. From the order denying them the relief asked, they appeal.
Reversed, with directions to set aside the order appointing the receiver.
Lesh & Lowther, for appellants.
Clawson, Yeager & Duncan, for appellee.
OPINION
For some time prior to March 9, 1926, one Adelbert S. Burdick had been conducting a business in the city of Indianapolis under the trade name of "Service Tire Company." While so operating, he became indebted to the "E. G. Spink Agency, Incorporated," on account of insurance premiums in the sum of $ 268.29, and was so indebted on March 9, 1926. On said date, the said creditor filed in the Marion Superior Court its complaint asking that a receiver be appointed to take charge of the stock of merchandise--automobile tires--of said Service Tire Company, to hold and administer the same for the benefit of creditors. In said complaint, it was alleged, inter alia, that said Service Tire Company was owned and controlled by one Adelbert S. Burdick, who was conducting said business under said trade name; that said Burdick was owing past due indebtedness in excess of $ 1,300, and that said Burdick could not pay the same and was about to discontinue business; that Burdick had theretofore executed a "trade acceptance" in a sum in excess of $ 10,000, which would be due on April 1, 1926, and that he could not meet and pay the same; that upon the discontinuance of said business, said stock, consisting largely of automobile tires, would rapidly depreciate in value. The complaint also alleged that the Steinbrenner Rubber Company and other corporations "would be claiming an interest in and to said stock of goods" of said Service Tire Company, and that there would be a conflict of interest between the several parties claiming said stock of goods.
Notice of said complainant's intention to apply for a receiver was served upon Burdick and he acknowledged service of such notice, filing his written acknowledgment in court, and he also, in writing, filed in this cause, consented to the appointment of a receiver for said property, stating that, as he understood it, said application was based upon his insolvency and "conflicting claims as to who had title to said estate." Upon the filing of said complaint, which was verified, and the consent of said Burdick aforesaid, the court appointed the appellee as receiver of said property, fixed the amount of his bond as such, which bond was at once filed and approved and said receiver took charge of said property.
On April 8, 1926, the appellant, Steinbrenner Rubber Company, filed its petition asking that it be permitted to intervene herein and, leave having been granted, it filed its verified petition in which it claimed to be the owner of said property of which the receiver had possession, and it asked that said receiver be directed to turn said property over to it. It based its claim to ownership upon a contract between itself and said Burdick, under which it, as a manufacturer, furnished its goods to said Burdick to be by him sold. Under said contract, Burdick was a "factor," selling the goods of said appellant. A hearing was had upon said petition, which resulted in an order denying the prayer thereof. The Central Trust Company of Illinois filed a like petition claiming that it was the owner of said goods by virtue of an assignment to it made by said rubber company; this petition was also denied and this appeal followed.
Our statute, § 1300 Burns 1926, makes specific provision for the appointment of receivers; it specifies seven different situations under which a receiver may be appointed. There is no contention in this case that either the first, second, third, fourth, fifth, or sixth specifications or clauses of said section cover the situation disclosed in the case at bar, and if it is covered by said section, it must fall under the seventh specification, which is as follows: "And in such other cases as may be provided by law; or where, in the discretion of the court, or judge thereof in vacation, it may be necessary to secure complete justice to the parties." This clause is simply confirmatory of a jurisdiction exercised by courts of equity, as one of its prerogatives, from a very early day. As said in Bitting v. Ten Eyck (1882), 85 Ind. 357: "The same power is conferred by the code upon the courts of this State, to be exercised for the same purposes and in the same emergencies, as in the courts of equity before the adoption of the code." In the same case, it was said: "The appointment of a receiver is one of the prerogatives of a court of equity, exercised in aid, of its jurisdiction, in order to enable it to accomplish, as far as practicable, complete justice between the parties before it." (Our italics.) In the absence of specific statutory authority to appoint a receiver in a given case, under a specific set of facts, the rule as to such appointment in courts of equity prevails,...
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