Tormohlen v. Tormohlen

• Decision Date: 01 May 1936
• Docket Number: 26571.
• Citation: 1 N.E.2d 596,210 Ind. 328
• Parties: TORMOHLEN v. TORMOHLEN.
• Court: Indiana Supreme Court

1 N.E.2d 596

210 Ind. 328

TORMOHLEN v. TORMOHLEN.

No. 26571.

Supreme Court of Indiana.

May 1, 1936

Action by Maude S. Tormohlen against Herbert V. Tormohlen. From an order appointing, without notice, a receiver of defendant's property, defendant appeals.

Reversed, with directions.

Appeal from Jay Circuit Court, Hanson E. Mills, Judge.

Roscoe D. Wheat, of Portland, for appellant.

Robert L. Smith, of Portland, and McClellan & McClellan, of Muncie for appellee.

HUGHES, Judge.

This is an appeal from an order appointing a receiver without notice. On May 10, 1935, the appellee, Maude S. Tormohlen plaintiff, filed her complaint for divorce against the appellant, Herbert V. Tormohlen defendant. On the same day the plaintiff filed her verified application for a restraining order asking that the defendant be restrained and enjoined from selling, conveying, or in any way disposing of any of his property or moneys. A restraining order was issued restraining and enjoining the defendant from selling, conveying, or in any way disposing of any of his property or moneys save and except the produce produced and sold by him in his business of raising chicks and chickens and selling eggs during the pendency of the action. A copy of the order was ordered served upon Gladys L. Pearson, defendant's bookkeeper, the Citizens Bank of Portland, the People's Bank, and the First National Bank all of Portland, Ind. On May 11, 1935, the plaintiff filed an application for the appointment of a receiver without notice for all of plaintiff's property. Richard T. James was appointed receiver on said day and was duly qualified.

In the complaint for divorce, the plaintiff alleged that the defendant was the owner of real and personal property of the value of $60,000, and he had an annual income of $10,000, and in her petition for suit money, filed at the time of the complaint, she alleged that the defendant was worth over and above all his indebtedness the sum of $45,000, with an annual income of $10,000.

The record shows that summons was ordered issued to the defendant at the time of the filing of the complaint, and that on May 13, 1935, the sheriff made a return showing that on said day a copy thereof was left at the last and usual place of residence of the defendant, and the same kind of service and return was made on the petition for suit money. An alias summons was issued on May 14, 1935, to defendant upon the complaint, and on the same day the return of the sheriff shows that he served the same upon the defendant by reading to and within his hearing.

The application for the appointment of a receiver without notice states, among other things, that the defendant, appellant here, was the owner of a large amount of personal property consisting of valuable blooded livestock, horses, cattle, hogs, and other personal property; that he operated a chicken hatchery and otherwise dealt in eggs and poultry; that the chicken hatchery was a large and extensive business throughout a wide territory of the United States, having an annual gross income of $20,000; and that the good will and going value of said business is worth in excess of $30,000. It is further stated in the application: ‘ That at the time said action was commenced the defendant had knowledge of said action and knowledge that the court had granted a restraining order against him, but before notice of said restraining order could be served on him the defendant left the jurisdiction of this court and plaintiff is informed and believes that he has left the State of Indiana for the purpose of evading the jurisdiction of this court * * *. That prior to his departure or immediately thereafter, one Roscoe D. Wheat, attorney for the defendant appeared at the place of business of the defendant and took away with him the defendant's typewriter and letter heads and that plaintiff is informed and believes that it is defendant's intention to write the creditors of said hatchery from some point outside the State of Indiana and secure the payment of their accounts to him with intent thereby to prevent the collection of any judgment for alimony plaintiff might obtain in this cause on final judgment.’

It is further alleged that Sears, Roebuck & Co. of Chicago owed defendant a large amount of money for chicks sold and that the defendant intended to collect the amount due in order to prevent the plaintiff from collecting alimony on final judgment; that the value of said hatchery and egg business depends upon its operation, and a receiver should be appointed to operate said business during the pendency of the action; that the defendant has a great many creditors; that a large amount of his property is encumbered; and that he intends to dissipate what money he can receive and secure from the income of said business before served with the restraining order of the court. It is further alleged that the whereabouts and present address of the defendant was unknown and therefore impossible to give him notice.

The application for the appointment of a receiver was submitted to the court for trial upon the affidavit of the plaintiff in support thereof and a receiver was promptly appointed. On May 14, 1935, the defendant, appellant, here filed a verified motion to dissolve the order appointing a receiver, which motion was overruled.

The appellant relies upon several assignments of error for reversal, but they all relate to the proposition whether the court had the power to appoint a receiver under the circumstances discussed.

Section 3-2602, Burns', 1933, section 1156, Baldwin's Ind.St.1934, provides: ‘ Receivers shall not be appointed, either in term or vacation, in any case, until the adverse party shall have appeared, or shall have had reasonable notice of the application for such appointment, except upon sufficient cause shown by affidavit.’ As said in the case of Henderson v. Reynolds (1907) 168 Ind. 522, 81 N.E. 494, 496,11 L.R.A.(N.S.) 960,11 Ann.Cas. 977:‘ It is evident that under said statute it must appear, either in the verified complaint, or by affidavit, not only that there was a cause for the appointment of a receiver, but that there was cause for such appointment without notice. If sufficient cause for not giving reasonable notice is not shown by affidavit, the appointment is forbidden by said statute, and is erroneous.’ It is also the law that if a temporary restraining order against the defendant will protect the property in question, a receiver should not be appointed without notice. Hizer v. Hizer (1929) 201 Ind. 406, 169 N.E. 47. And the cause for appointing a receiver without notice must be evidenced by the existence of facts from which an emergency arises, rendering interference before there is time to give notice necessary in order to...