Wilkie v. Reynolds

Decision Date27 October 1904
Docket NumberNo. 5,210.,5,210.
PartiesWILKIE v. REYNOLDS.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Madison County; John F. McClure, Judge.

Action by Myron G. Reynolds against Henrietta Wilkie and another. From a judgment in favor of plaintiff, defendant Henrietta Wilkie appeals. Transferred from Supreme Court. Affirmed.

Griffin & Broadbent, for appellant. Bagot & Bagot, for appellee.

BLACK, C. J.

The complaint of the appellee against the appellant, Henrietta Wilkie, and her husband, Herman F. Wilkie, was in two paragraphs. In the first, the appellee sought judgment upon a promissory note executed to him by the appellant, and the foreclosure of a mortgage on certain real estate in Madison county, executed to him by the appellant and her husband to secure the payment of the note. The second paragraph was based upon another promissory note of later date, and a mortgage, to secure its payment, of all the rents and profits of certain dwelling houses situated on certain lots in the city of Elwood; both the note and mortgage being executed by the appellant to the appellee. In this paragraph the appellee sought judgment upon the note, and the foreclosure of the mortgage, and the application of the rents and profits to the satisfaction of such judgment until fully paid. The complaint was filed June 8, 1903. On the same day, after the filing of the complaint and the issuing of a summons thereon to the sheriff for service on the defendants, as appears from the entry of record, the appellee filed his verified application for the appointment of a receiver pending the action, to take charge and possession of the mortgaged property, to hold, have, and control the same, and to collect the rents and profits subject to the future order of the court; the application containing averments of facts as excuse for want of notice thereof to the appellant. Thereupon the court, without notice to the appellant of the application for the appointment, proceeded and appointed Ezra R. Williams as receiver, who appeared and qualified as such. June 10, 1903, the defendants, as stated in the entry of record, filed their motion to discharge the receiver, which motion is not in the record. Without any ruling thereon, so far as is shown, the appellant and her husband, June 20, 1903, filed their separate answers in bar of the appellee's cause of action set forth in the complaint. Thereupon, on the same day, without any intervening proceeding, the cause was submitted to the court for trial, hearing, and judgment, and the court, having heard the evidence, found in favor of the appellee, stating the amount due and unpaid upon each of the notes, and finding that the appellee was entitled to recover of the appellant such amounts, and his costs, except the charges and expenses of the receiver so appointed, which the appellee should pay; also that the appellee was entitled to the foreclosure of the mortgage, and entitled to have a receiver to collect the rents, etc.; also that the appellant should have a specified time within which to make payment; also that the receiver theretofore appointed should be discharged, and that Solomon F. Downs should be appointed as such receiver, and that, if payment was not made within such time, the court should then render judgment, etc., and order said receiver to take charge of the property, etc.; the entry of the finding containing, after the foregoing provisions, the following: “All of which all of said parties in open court fully consent and agree...

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