193 Ind. 645 | Ind. | 1923
This was a suit by appellee against appellant for the appointment of a receiver without notice to take charge of the assets of appellant. From an order appointing a receiver “until such receivership is made permanent or dissolved”, this appeal was prosecuted.
It appears from the .complaint that appellant was an Indiana corporation authorized to buy and sell real estate and matters incidental thereto; that appellee was the owner of ten shares, par value $100 each, nonparticipating seven per cent, preferred stock of the corporation’s issue of $154,200; that for want of sufficient funds, no dividends had been paid on this stock for two years. The complaint then alleges: “That the defendant is insolvent and in imminent danger of insolvency and that the .defendant is now proposing to immediately dispose of certain of its real estate holdings illegally, and in preference of certain creditors to the damage and injury of this plaintiff, in this: That the defendant has proposed, in a general circular, to the preferred stockholders, to transfer to them real estate owned by the company in redemption of such preferred stock to the exclusion of other creditors and to the exclusion of certain of the preferred stockholders, including this plaintiff, who are not willing to accept real estate in exchange for such preferred stock. That
This complaint was verified. There was also an affidavit by one Otto McCarthy to the effect that he, as a preferred stockholder, had received “as such stockholder, financial statement and copy of letter referred to in the complaint of George Lannes and that he has read the complaint of George Lannes and the matters and things set forth in said complaint are true.” Upon this showing alone, a receiver was appointed.
Obviously, a receiver was sought in this case under clause 5, §1279 Burns 1914, §1222 R. S. 1881, which provides that a receiver may be appointed : When a corporation has been dissolved,
In the instant case the receiver was appointed upon the-showing made by the complaint, to which there was attached a financial statement previously furnished to the stockholders by the corporation, in which it appears that practically all of its assets consisted of real estate holdings. True, there was $3,766.97 in cash, $7,707.19 in notes and accounts, but there is no showing that these items (money, notes and accounts) would be or were in imminent danger of being wasted, misappropriated or removed beyond the jurisdiction of the court. There is not the slightest intimation in the complaint, or facts justifying the conclusion, that a temporary restraining order, which may be had without notice (§1207 Burns 1914, §1150 R.
Moreover, the letter to which we have referred accompanying the above statement was in t-he nature of a suggestion that the corporation transfer to the preferred stockholders certain lots and lands in redemption of their stock. There is nothing in the complaint charging the officers of the corporation with any attempt to thereby defraud Or overreach any of the stockholders by furnishing them an untrue statement of the financial condition of the corporation, or that the letter in any wise misrepresented the true condition of the corporation’s affairs.
We therefore hold that the court erred in appointing the receiver in the instant case.
Judgment reversed, with instructions that in case, after notice and trial, a receiver is not appointed, the costs of this proceeding, both in the court below and in this court, be taxed to appellee, but in case a receiver is appointed, upon a hearing after notice, then the costs of this appeal only be taxed to appellee.