Guynn v. Newman

174 Ind. 161 | Ind. | 1910

Monks, J.

This is an appeal from an interlocutory order appointing a receiver upon application of appellee. Appellants filed a general denial to the complaint and appeared by attorney at the hearing of the application for the ai> pointment of the receiver.

It is insisted by appellants that the amended complaint ‘ ‘ does not state facts sufficient to authorize the appointment of a temporary receiver or to authorize the appointment of a receiver at any time.”

1. After an interlocutory order appointing a receiver has been made, and such interlocutory order appealed from, the cause, notwithstanding the appeal, remains pending in the trial court, and amendments and changes in the pleadings may be made as in other cases. Wabash R. Co. v. Dykeman (1892), 133 Ind. 56, and cases cited; Gray v. Oughton (1896), 146 Ind. 285, and cases cited.

While the verified complaint may not be sufficient to authorize or justify the appointment of a receiver, yet the evidence given at the hearing of the application may be sufficient to authorize such appointment. In such a ease the interlocutory order appointing a receiver will not be reversed merely because the complaint does not state facts sufficient to authorize the appointment. Levin v. Florsheim & Co. (1903), 161 Ind. 457, 462, and cases cited; Sallee v. Soules (1907), 168 Ind. 624, 627, 628, and cases cited; Gray v. Oughton, supra; Goshen Woolen Mills Co. v. City Nat. Bank (1888), 150 Ind. 279; Sullivan Electric, etc., Co. v. Blue (1895), 142 Ind. 407, and cases cited; Supreme Sitting, etc., v. Baker (1893), 134 Ind. 293, 20 L. R. A. 210; Wabash R. Co. v. Dykeman, supra, and cases cited; Naylor v. Sidener (1886), 106 Ind. 179.

2. The record shows that appellants filed a written precipe with the clerk for “a transcript of all the record entries made in the ease” and for “all the papers and pleadings filed in the ease, except bill of exceptions. ’ ’ The transcript contains what purports to be the original bill of exceptions containing the evidence. The certificate of the clerk to the transcript, however, authenticates only the papers and the entries required by the precipe, and makes no mention of the Bill of exceptions. This court in the case of Workman v. State, ex rel. (1905), 165 Ind. 42, after referring to §690 Burns 1908, §649 R. S. 1881, and to §667 Burns 1908, Acts 1903 p. 338, §7, said: “It is still the right of a party desiring to appeal to take up a part only of the record of the cause, and in such case he must file with the clerk a written precipe specifying the parts of the record desired. When a party elects to exercise this right and directs in writing specifically what papers .and entries shall be transcribed and certified for appeal, the fault is his if he fails to secure such a transcript as will fully and clearly present all the questions which he desires the court to review and decide. It follows that if, in his precipe, he omits papers. or entries essential to a consideration of any question, his appeal will be so far unavailing. The precipe when in writing is a part of the record under both the act of 1903, supra [Acts 1903 p. 338], and §661, supra [§690 Burns 1908], and the clerk can only properly certify and authenticate such parts of the record as are designated in the precipe or precipes of the parties. In this case appellant Workman wholly omitted in his precipe any reference to the bill of exceptions, and failed to direct the clerk to certify either the original or a transcript thereof, and under these circumstances the bill of exceptions cannot be made a part of the record by the act of the clerk in embracing and certifying it with the transcript.” See, also, Curless v. State (1909), 172 Ind. 257; Roberts v. Smith (1906), 43 Ind. App. 613, and cases cited.

In the ease before us, appellants by their precipe expressly except the bill of exceptions from its operation.

We hold therefore, on the authority of the case of Workman v. State, ex rel., supra, that the bill of exceptions, although embraced in the transcript, is not authenticated by the clerk, is not a part of the record and cannot be considered.

The presumption is that the court did not err in making the interlocutory order appointing said receiver, and there is nothing in the record to overcome this presumption.

Said interlocutory order is therefore affirmed.