168 Ind. 485 | Ind. | 1907
This is an appeal from an interlocutory order appointing a receiver without notice. The complaint was filed and summons issued September 8, 1906. On the same day the judge of the court below, at chambers, without notice to or appearance of appellant, appointed a receiver of all its property rights, credits and effects.
The only evidence given at the ex parte hearing for the appointment of the receiver was the verified complaint, which reads as follows: “John G. Bryson complains of the Continental Olay & Mining Co., and says that said defendant is a corporation, carrying on a general clay and coal mining business, in pursuance of the laws of the State of Indiana, and having an office and agency for. the transaction of such business in the county of Olay; that he, the plaintiff herein, is a stockholder in said corporation; that the business of said corporation has been conducted in such a loose, careless and reckless manner as that there now exists an outstanding indebtedness against said corporation of more than $50,000, as plaintiff is informed and believes; that the receipts accumulated by said corporation are all
It was said in the case last cited: “When such notice can be given it should be given, unless there is imminent danger of loss, or great damage, or irrevocable injury, or the greatest emergency, or when by the giving of notice the very purpose of the appointment of a receiver would be rendered nugatory; and such instances are of rare occurrence in the federal courts, because of their power, when an injunction is asked for, to grant a temporary restraining order (Rev. St. U. S. §718), which may be served at the same time that the notice is served, to prevent action by the defendant or his agent, and to preserve the existing conditions until the application for an injunction
Tbe belief of appellee that Legnard would not dispose of tbe assets of tbe corporation to tbe best advantage of tbe minority stockholders, and tbe probability that said Legnard would, if tbe assets of tbe corporation were turned into cash, take tbe same out of tbe State, was not a sufficient showing to authorize tbe appointment of a receiver. This was a mere statement of tbe opinion of appellee. Tbe facts upon which such opinion was founded should have been set forth in the verified complaint that tbe court might judge of its correctness. Wabash R. Co. v. Dyke-man, supra, at page 65.
The interlocutory order appointing a receiver is reversed.