West v. Reeves
| Decision Date | 24 May 1934 |
| Docket Number | 25801 |
| Citation | 190 N.E. 431,207 Ind. 404 |
| Parties | WEST et al. v. REEVES |
| Court | Indiana Supreme Court |
[Rehearing denied December 31, 1934.]
1. APPEAL---Review---Interlocutory Orders---Sufficiency of Pleadings.---On appeal from an interlocutory order appointing a receiver, the complaint, challenged for want of facts, may be considered only insofar as it is directly involved in the interlocutory order and necessary to a judgment upon it. p 406.
2. APPEAL---Review---Interlocutory Orders---Rules of Procedure.---General statutory rules of procedure regulating appeals do not fully apply on appeal from an interlocutory order appointing a receiver, since sufficiency of the complaint cannot be tested by demurrer, or otherwise, at the time of application for a receiver. p. 406.
3. RECEIVERS---Ancillary Application For---Pleadings and Demurrers.---Pleadings and demurrers are not relevant to an ancillary application for appointment of a receiver. p. 406.
4. APPEAL---Reservation of Grounds---Motion for New Trial---On Interlocutory Order.---On appeal from an interlocutory order appointing a receiver, a motion for new trial is not necessary to present questions involving the evidence. p 406.
B APPEAL---Effect of Transfer---Powers of Lower Court---Pending Appeal from Interlocutory Order.---On appeal from an interlocutory order appointing a receiver, the complaint remains in the trial court and is there subject to amendment so long as the case is still pending in that court. p. 407.
6. APPEAL---Record---Bill of Exceptions---Necessity to File Within Time Allowed.---Where a bill of exceptions containing the evidence was not presented to the trial court for approval or filed within the time allowed by the court, the evidence was not in the record. p. 408.
7. APPEAL---Review---Questions Involving Evidence---Evidence Not in Record.---No question involving the evidence could be considered on appeal where the bill of exceptions containing the evidence was filed too late. p. 408.
Walter F. Wood, of Sullivan, for appellants.
Chas D. Hunt, of Sullivan, for appellee.
This is an appeal from an interlocutory order appointing a receiver in an action commenced by appellee in the court below against appellants Harry T. West, Everett King, and Irvin Cofey, as partners doing business under the firm name of Black Diamond Coal Mining Company, and/or Black Diamond Coal Company.
Appellee's complaint, in substance, alleged that the partnership was indebted to him in the sum of $ 67 for work performed by him in mining coal from May 16 to May 31, 1929, both inclusive, which sum was due and unpaid. Other allegations were to the effect that appellee's claim was part of an unpaid pay roll amounting to $ 2,000; that the partnership was indebted in a large amount to other persons aside from the pay roll as a result of its operating a coal mine under a lease from the Hoosier Coal Mining Company; that appellants are 'dissipating, squandering and wasting' the property and appropriating the proceeds from the sale of the coal mined to their own use without attempting to pay the firm's indebtedness and pay roll; that the partnership is insolvent, and that a receiver should be appointed to take charge of the property, money, and effects of the partnership, operate the mine, and conserve all funds arising from such operation. The record discloses that notice to defendants of the filing of the complaint was given, and thereafter, on July 9th, both parties to the action appeared in open court, oral evidence was heard on the application for the appointment of a receiver, which resulted in the court appointing a receiver 'to take charge of the lease of defendants herein secured from the Hoosier Coal Mining Company and the lease hold property included in said lease and business thereunder.' Thereupon appellants prayed an appeal to the Supreme Court, which was granted, and seven days given to file all bills of exceptions. The record discloses that one bill of exceptions containing the evidence was presented to the court, signed by the judge, ordered made a part of the record, and filed on July 17th.
The errors here assigned are: The complaint fails to state facts sufficient to justify the appointment of a receiver; the decision of the court is not supported by the evidence; and the decision of the court is contrary to law.
The right of appeal from an interlocutory order appointing a receiver is statutory. Section 3-2603, Burns' 1933; Acts 1881, Sp. Sess., p. 240, c. 38, § 254. In this case the appointment of the receiver...
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