31 N.E.2d 206 | Ind. | 1941
The appellants were the owners of certain real estate covered by a mortgage which the appellees, Tony Kozlowski and Ivan Chajpak, were seeking to foreclose. On July 3, 1940, the cause was submitted to the Lake Superior Court on a verified petition for the appointment of a receiver. Said court appointed Alex Einikis as receiver to collect the rents and profits and apply the same to the repair of the property, and fixed his bond in the sum of $400.00. Thereafter on November 7, 1940, the Jasper Circuit Court, to which court the cause had been transferred on a change of venue, entered an order overruling "the joint motion of the plaintiff and defendant, Stephen S. Parfenoff (one of the appellants), to set aside the order of the Lake Superior Court, Room 3, Gary, Indiana, dated July 3, 1940, appointing said Alex Einikis as receiver herein" and overruling "the objections of the cross-defendants, Stephen S. Parfenoff and Martha Parfenoff, to the appointment of a receiver to take the place of Alex Einikis, heretofore appointed receiver, who has since his said appointment failed to qualify as such," and appointing "John Fox, receiver in the place and stead of Alex Einikis" and ordering the said Fox "to qualify as such receiver by filing bond in the penalty of $400.00 payable to the state of Indiana, for the benefit of all parties and to otherwise qualify as by law provided on or before November 14, 1940."
From this order of the Jasper Circuit Court the appellants, Stephen S. Parfenoff and Martha Parfenoff, have prosecuted this appeal, relying on the alleged errors of the court: (1) in overruling the motion of the appellants to set aside the order of the Lake Superior Court appointing Alex Einikis, receiver; (2) in overruling *158 the objection of the appellants to the appointment of a receiver to take the place of Alex Einikis, who had failed to qualify as such receiver; and (3) in appointing John Fox, as receiver, in this cause without any request having been filed for such appointment and without any evidence being heard to show either the propriety or the necessity for such appointment.
The appellants present no question as to the eligibility of the substitute receiver named by the Jasper Circuit Court, but base their entire argument on the grounds: (1) that the original appointment by the Lake Superior Court constituted error and should therefore have been set aside; and (2) that the appointment of the substitute receiver without any request having been filed therefor and without any evidence being heard to show the propriety of or the necessity for such appointment constituted error.
The appellee, Ivan Chajpak, has filed a motion to dismiss this appeal on the grounds: (1) that the refusal of the Jasper Circuit Court to set aside the order of the Lake Superior Court appointing said original receiver was not an order from which an appeal would lie; (2) that there is no appeal from the order naming a substitute receiver; and (3) that the appellants' brief was not filed within the time prescribed by the rules of the Supreme Court.
We are of the opinion that each of the grounds for dismissal presented by the appellee is valid and that this appeal must be dismissed.
The action of a court in refusing to vacate or set aside an order appointing a receiver is an interlocutory order from which no appeal will lie unless expressly authorized by 1, 2. statute. Wood v. Brewer (1857),
In Wabash Railroad Company v. Dykeman (1892),
An order denying a motion to set aside a former order appointing a receiver amounts to no more than *160
a refusal by the court to reconsider and to set aside an 5-7. action already taken. Title Ins. Trust Co. v. California Development Co. (1911),
The appellants herein also objected to the appointment of a substitute receiver without a further petition for such appointment having been filed and the court hearing 8. evidence thereon as to the necessity and propriety of such appointment. In Stiver v. Stiver (1939),
In Hill v. Lincoln Nat. Bank Tr. Co. (1938),
A receiver pendente lite, as an officer of the court, holds possession of the property for the benefit of the party or parties ultimately determined to be entitled thereto. 9, 10. His custody is considered to be the custody of the court. The appointment of a substitute receiver in the place and stead of one theretofore appointed does not change the legal custody of the property.
In the case at bar the appellants raise no question as to the qualification of the substitute receiver appointed, but only object to the appointment on the ground that the 11, 12. appointment of any receiver was improper and that the substitute receiver was appointed without any request and without any hearing to determine the propriety and necessity of such appointment. We are of the opinion that § 3-2603, Burns' 1933, § 1157, Baldwin's 1934, does not provide for an appeal from the appointment of a substitute *162 receiver under the facts and circumstances presented by this case. The appointment of a substitute receiver does not give a second opportunity to question the original appointment.
Rule 2-15 of the Rules of the Supreme Court of Indiana, 1940 Revision, provides that in all appeals from interlocutory orders the appellant should have ten days after submission to 13. file his brief. The record here discloses that the cause was submitted on November 18, 1940. The appellant's brief was not filed until December 7, 1940. It, therefore, follows that it would be necessary to dismiss this appeal even if the statutes of this state provided for an appeal from the interlocutory orders here in question.
The appeal is dismissed.
NOTE. — Reported in