Tucker v. Tucker

• Decision Date: 10 January 1924
• Docket Number: No. 24008.,24008.
• Citation: 194 Ind. 108,142 N.E. 11
• Parties: TUCKER v. TUCKER.
• Court: Indiana Supreme Court

194 Ind. 108

142 N.E. 11

TUCKER

v.TUCKER.

No. 24008.

Supreme Court of Indiana.

Jan. 10, 1924.

Appeal from Circuit Court, Knox County; Thomas B. Coulter, Judge.

Suit by Wilbur C. Tucker against Lola F. Tucker. From an interlocutory order appointing receiver without notice, defendant appeals. Reversed, with directions to set order aside.Shake & Kimmell, of Vincennes, for appellant.

EWBANK, C. J.

This is an appeal from an interlocutory order, in vacation, appointing a receiver without notice. Appellee and appellant are husband and wife. Appellee filed a verified complaint alleging that he and appellant were partners, engaged in the operation of a hotel at Vincennes, Ind., under an agreement to share the profits and losses of such business equally; that said partnership owned personal property used in said business and the good will thereof of the total value of $12,000, which could not be separated without loss to all parties, and a bank account which had been subject to the check of either partner; that 10 days before the complaint was filed appellant had transferred the funds from said bank account to an individual account in her own name, and had taken sole possession of all the hotel property and books, and ever since had excluded appellee therefrom, and was converting all the income and profits of such business to her separate use; that she was about to dispose of said property, and there was “danger of the profits, property, and good will being lost, removed or materially injured; that unless a receiver is appointed forthwith, and without notice, for said business, the same will be destroyed, and the plaintiff will suffer irreparable damage and loss; and that notice will jeopardize the safety and the custody of said business.” It concluded with a prayer for the dissolution of the partnership, and that a receiver be appointed “forthwith, without notice.”

The præcipe of appellant called for “a transcript of the entire record,” and the clerk has certified that the transcript contains “copies of all papers and entries in said cause *** as required by the above and foregoing præcipe.” It appears therefrom that no summons was issued, and that the defendant (appellant) did not appear, and that the only entry made in the records of the court after the filing of the complaint was made by the court on the same day that it was filed, as follows:

“Comes now the plaintiff and asks that a receiver be appointed without notice in the above entitled cause, and the court, having inspected the verified application of the plaintiff for the appointment of a receiver and the complaint, finds that a receiver should be appointed forthwith and without notice. It is therefore ordered by the court that Edgar J. Julian be and he is hereby appointed as receiver,” etc.

Three days later the receiver filed his bond, and the next day appellant filed exceptions to the order appointing the receiver without notice, and her own bond in the same amount in which the receiver had been required to give bond, and gave notice of an appeal, and two days later (being the seventh day after the receiver was appointed) perfected the appeal by filing the transcript and her assignment of errors in this court.

[1][2][3][4] The averment in the verified complaint, which we have put in quotation marks, of affiant's conclusions that, unless a receiver were appointed without notice, the business would be destroyed, and that notice would jeopardize the safety of the business, whatever effect they might have as matter of pleading in the formation of...