25 Ind. App. 335 | Ind. Ct. App. | 1900
—This appeal is by the plaintiff below. It is assigned as error (1) that the court erred in granting appellee leave to file a supplemental plea in abatement; (2) that the court erred in overruling appellant’s demurrer to appellee’s plea in abatement. The question presented by
It is first insisted that the court erred in permitting the plea in abatement to be filed after the cause was at issue, and contrary to a rule of the Howard Circuit Court. There was no error in permitting the plea. The cause for abatement arose after the action was brought, and after the issues were closed. These facts appear in the plea. It was a supplemental defense and could be pleaded by leave of court. §402 Burns 1894.
We come now to the second error claimed by appellant, the overruling of the demurrer to the plea in abatement.
We think it well settled that the appointment of a receiver for a corporation does not stop or affect a suit that is pending against the corporation. If the receiver becomes a party defendant, it is upon his own motion, as it does not matter to the plaintiff in such an action whether his judgment be against the corporation or its receiver. Cook on Corp., §811. This being a receivership pendente lite, and
. In Thompson’s Law of Corporations, Vol. 5, §6,900,'it is said: “The necessary effect of the appointment of receiver, unless the statute under which he is appointed, or the order appointing him, is restrictive, is to suspend all rights of action, of whatever description, on the part of the corporation ; since the receiver, in a general receivership, whether it be what is called a receivership pendente lite, or a receivership for the purpose of winding up the corporation, is vested with the right to the custody of all the assets of the corporation of whatever description, for the purposes of the administration; and this necessarily includes every right of action of whatever description which is possessed by the corporation.”
The action of the court in appointing a receiver for appellant corporation suspended appellant’s right further to
The cases cited by appellant are not in point here. They are all to the effect that the action may be continued by the receiver in the name of the corporation. This is statutory. §2 Y2'Burns 1891. In this case the receiver refused to continue the action, and the plea in abatement simply brought to the attention of the court those facts, which, with the consent of the court, permitted the receiver to discontinue the prosecution of the claim which his appointment as receiver placed in his-control.
Counsel’s objection to the plea in abatement, that it- does not show that appellant was the owner of the claim sued on
We find no reversible error. Judgment affirmed.