187 Ind. 606 | Ind. | 1918
— This is an appeal from an interlocutory-order appointing a receiver without notice to take charge of a stock of groceries owned by appellant. The action in which the receiver was appointed was brought on an open account alleged to be due appellee from appellant for merchandise sold to appellant and used in the conduct of its business.
As showing the necessity for the appointment of a receiver and the emergency which required such appointment without notice to appellant, the complaint states that appellant was a corporation engaged in the retail grocery and produce business in the city of Terre Haute, Indiana, and that its only assets consisted of a stock of groceries and produce and the furniture and fixtures used in connection with the business. It is alleged that appellant corporation was insolvent, and that its president and general manager, with full knowledge of such insolvency, had closed appellant’s place of business on February 12,1917, and that on the day the complaint was filed he was engaged in removing and secreting all of appellant’s property and tangible assets with the fraudulent intent and purpose of placing them beyond the reach of plaintiff and the other creditors of the corporation. It appears that the complaint was filed in the Vigo Circuit Court on February 15, 1917, and that the receiver was appointed on the same day without notice to appellant.
It has been held that a receiver will not be appointed without notice when a court, as in this state, has authority to grant a temporary restraining order without
We need not and do not decide whether the facts shown would have been sufficient, if established on a hearing after notice, to authorize the appointment of a receiver, but we do hold that the facts shown do not disclose such an emergency as warranted the court in making such appointment without notice.
The cases cited by appellant to sustain the action of the trial court may be divided into two classes. In the first class are those in which there was an appearance or notice and a receiver had been appointed after a hearing. Mead v. Burk (1900), 156 Ind. 577, 60 N. E. 338; Bitting v. Ten Eyck (1882), 85 Ind. 357; Levin v. Florsheim & Co. (1903), 161 Ind. 457, 68 N. E. 1025; Sallee v. Soules (1907), 168 Ind. 624, 81 N. E. 587. No question could arise in any of these cases as to the validity of an order appointing a receiver without notice. In the cases cited under the 'second class the receiver was appointed without notice, and in every case cited the order was held to be erroneous for the reason that the facts stated were not sufficient to authorize such appointment without notice. Henderson v. Reynolds; supra; Marshall v. Matson (1908), 171 Ind. 238, 86 N. E. 339.
The interlocutory order appointing a receiver without notice is erroneous, and is accordingly reversed, with instructions to the trial court to vacate the same.
Note. — Reported in 120 N. E. 659. Receivers: appointment, notice as essential element, 72 Am. St. 35, Ann. Cas. 1915C 897, 34 Cyc 122, 124,