190 Ind. 481 | Ind. | 1921
— This is an appeal from a judgment of the Marion Superior Court approving a receiver’s final re
On January 26, 1914, appellant brought suit against appellee, a retail dealer in coal and other fuel, and alleged facts showing appellee’s indebtedness to it and other creditors, the general condition of his business, and asking for the appointment of a receiver to take charge of and administer said business for the best interests of all concerned. Appellee appeared and filed an answer in which he admitted in substance the facts set out in the complaint, including his indebtedness to appellant, and joined in the prayer for the appointment of a receiver. A hearing was had which resulted in the appointment of a receiver who qualified and took charge of appellee’s business. On September 11, 1914, the receiver filed a .current report in which he asserted that the business could not be operated at a profit under existing conditions and prayed the court for an order directing him to sell the assets of the business and distribute the proceeds thereof. On the same day appellee filed a verified petition in which he asked for an order setting over to him out of the assets in the hands of the receiver, or out of the proceeds to be derived from the sale thereof, an amount of property or money sufficient, with the property which he then held, to make up a householder’s exemption. As a part of this petition, appellee filed an inventory in which he listed all the property then owned by him, but did not inventory his property as of any other date. The court directed a sale of the property in the hands of the receiver and
As applied more particularly to facts such as are here in issue, it has been expressly decided in a number of cases that in a receivership suit, a decree which settles the receiver’s accounts, approves payments made by him, determines his compensation and directs distribution of the surplus, is a final decree, at least for the purposes of appeal, without regard to the status of the main action. Shannon v. Shepard Mfg. Co. (1918), 230 Mass. 224, 229,119 N. E. 768; Chandler v. Cushing-Young Shingle Co. (1895), 13 Wash. 89, 95, 42 Pac. 548; Los Angeles v. Los Angeles, etc., Co. (1901), 134 Cal. 121, 124, 66 Pac. 198; Patterson v. Ward (1897), 6 N. Dak. 359, 71 N. W. 543; State, ex rel. v. Judge (1884) , 36 La. Ann. 981, 983.
It will not be necessary to notice all the questions sought to be presented by the motion for a new trial. In brief, it is appellant’s contention that the appointment of the receiver operated as an equitable execution on the property of appellee and that, in order to avail himself of his- exemption rights, it was incumbent on appellee to schedule his property as of the date when the receiver was appointed, and that, failing so to do, his claim is barred. The law provides for a householder’s exemption against “sale on execution or any other final process from a court” (§745 Burns 1914, §703 R.
Similarly, it has been held that: “When the statute which confers the right also prescribes the manner in which the right may be secured, the failure to assert the right at the time and in the manner prescribed will be deemed a waiver of the privilege.” Wagner v. Barden (1895), 18 Ind. App. 571, 573, 41 N. E. 1067. See also,
Similar in principle to the above cases are those which hold that the appointment of a receiver serves to fix the rights of the several parties in interest as they exist at the time of his appointment, although such rights may not be determined judicially until the final hearing in the matter. Strebel v. Bligh (1915), 183 Ind. 537, 542, 109 N. E. 45; American Trust, etc., Bank v. McGettigan, Rec. (1899), 152 Ind. 582, 587, 52 N. E. 793, 71 Am. St. 345; Lorch v. Aultman & Co. (1881), 75 Ind. 162, 165.
It is the order of appointment which places the property of the defendant in custodia legis and it is that order, therefore, which corresponds to the issuance of a writ of execution in a proceeding at law. Smith, Receiverships 53; Jones v. Arena Publishing Co. (1897), 171 Mass. 22, 26, 50 N. E. 15; 34 Cyc 199, 200.
From the foregoing authorities and the express provisions of our householders exemption statute, it would seem to follow that the debtor who asserts his right to an exemption in cases of this character must prepare and file with the receiver a schedule of the property owned by him or in which he had an interest, as of the time the receiver was appointed. For upon the appointment of the receiver the property passed into the custody of the court.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial and for further proceedings not inconsistent herewith.