186 Ind. 118 | Ind. | 1916
Appellee recovered a judgment of $7,500 as damages occasioned by the death of John W. Mauger through the negligence of appellant in the operation .of the railroad of which he was receiver.
The complaint consists of five paragraphs to each of which a demurrer for want of facts was addressed, which demurrer was overruled. By the first and fifth paragraphs it was alleged that on December 14, 1912, John E. Curtis was duly appointed receiver of the Cincinnati, Bluffton and Chicago Railroad Company and that he was operating that road as a common carrier at the time of the accident to plaintiff’s deceased. These paragraphs also allege that leave was first asked and granted by the Huntington Circuit Court to maintain this action against such receiver. The second, third and fourth paragraphs of complaint do not allege these facts and appellant asserts that the demurrer to these paragraphs should have been sustained for that reason and that the action of the court in overruling the de-' murrer to such paragraphs is reversible error.
In the case of Barton v. Barbour (1881), 104 U. S.
As before stated, Indiana belongs to the list of states which follow the rule adopted by the Supreme Court of the United States. As a reason for this rule it is stated that it is necessary to prevent one creditor or set of creditors from obtaining an undue advantage over others in the enforcement of their claims; otherwise courts outside the jurisdiction of the court which appointed the receiver might proceed to judgment and sell the property within their reach under execution, and the appointing court would be powerless to prevent the injustice. Beach, Receivers §655. The reason for the
The record discloses that appellant was engaged as receiver in operating the Cincinnati, Bluffton and Chicago Railroad as a common carrier of passengers and appellee’s decedent purchased a ticket and desired to take passage on a car propelled by steam power which was due to leave Huntington at about seven o’clock p. m. on the day he was killed. It appears that the railroad company which appellant was operating did not maintain a regular- station and platform at Huntington where passengers were received and discharged but
Instruction No. 10 given by the court is not open to the objection urged against it.
The motion for a new trial was properly overruled. Judgment affirmed.
Note. — Reported in 114 N. E. 408. Jurisdictional character of the leave of court to sue a receiver, 74 Am. St. 287. See under (1) 34 Cyc 411, 417, 439. (2) 31 Cyc 282; 29 Cyc 507; (4) 6 Cyc 627; 10 C. J. 1002; (6) 40 Cyc 2497.