189 Ind. 7 | Ind. | 1919
On February 10, 1915, appellant was appointed receiver for the Independent Envelope Company by the Marion Circuit Court. He acted as such receiver until January, 1916, when, pursuant to the mandate of this court in Coleman v. Callon (1915), 184 Ind. 204, 110 N. E. 979, he turned over the assets of said company to- appellee, receiver for the same company, by virtue of an appointment made by the superior court of Marion county. This court in the Coleman case, supra, held that the superior court was first to obtain jurisdiction to appoint.
The instant case is a claim filed by appellant in the latter receivership for pay for himself aiid his attor
The claim shows that appellant performed valuable services for the estate. The undisputed evidence tends to prove this claim. So it is obvious that the nisi prius court was misled by the language of this court in the Coleman case, supra, wherein it was said on pages 207 and 208 that the appointment of appellant by the circuit court “was without authority and void.” Nor is it strange that this should happen, for the Appellate Court has fallen into the same error; and so has this court, for on December 18, 1918, it denied transfer, and the mandate of the Appellate Court, affirming the judgment in this case, was sent down. On February 13,1919, this court set aside this denial of transfer.
Now at this point we are met by objection from appellee that this court has no power to recall this mandate and take this cause up on a petition to transfer. Appellee contends that, when the mandate of the court has gone down, the power of this court over a cause ceases and that the lower court attaches, and nothing further can be done by us in the premises. To sustain this contention they rely particularly on Ott v. Boring (1907), 131 Wis. 472, 110 N. E. 824, 111 N. W. 883, 11 Ann. Cas. 857, and cases cited in that opinion. An examination of that opinion discloses that it is based, to some extent at least, on Legg v. Overbagh (1830), 4 Wend. (N. Y.) 188, 21 Am. Dec. 115. This case is not given the interpretation by the courts of
In the instant case the denial of transfer and order setting it aside were made at the same “term of this court. It is well established that courts of general jurisdiction have power to set aside and correct their judgments at the same term 5 but' it is contended that we, as a court of review, have no such power where the mandate has gone down. If there is any force in this contention, it must be based upon the proposition that jurisdiction cannot be in both courts
Appellee further relies on the following authorities from this state: Parker v. State (1893), 133 Ind. 178, 216, 32 N. E. 836, 33 N. E. 119, 18 L. R. A. 657; Dudgeon v. Bronson (1902), 159 Ind. 562, 566, 64 N. E. 910, 65. N. E. 752, 95 Am. St. 315; Hutts v. Bowers (1881), 77 Ind. 211, 213; Pittsburgh, etc., R. Co. v. Mahoney (1897), 148 Ind. 196, 207, 46 N. E. 917, 47 N. E. 464, 40 L. E. A. 101, 62 Am. St. 503. These authorities all sustain the proposition that time for' rehearing is a legislative limitation upon the parties, and they also sustain the proposition that only par
“It is conceded that both courts had authority to appoint a receiver and the question narrows down to the proposition which court had first taken jurisdiction of the matter of the appointment of a receiver.” Appellant was appointed receiver by a court that had jurisdiction of the parties and the subject-matter in a cause in which a receiver could properly be appointed. He was therefore a de facto receiver and, during the time that he acted, is entitled to be compensated for his services out of the assets of the estate. Palmer v. State of Texas, etc. (1909), 212 U. S. 118, 132, 29 Sup. Ct. 230, 53 L. Ed. 435; Ford v. Gilbert (1903), 42 Ore. 528, 71 Pac. 971.
The judgment is reversed, with instructions to the trial court to sustain appellant’s motion for a new trial.