105 Ind. 171 | Ind. | 1886
Lead Opinion
This cause is now here for the second time. The opinion and decision of the court, when the case was first here, are reported under the title of Pressley v. Harrison, 102 Ind. 14. After the cause was remanded, in obedience to the mandate of this court, the superior court at special term overruled the defendants’ demurrers to appellant’s complaint theretofore filed. Thereafter the appellant, Pressley, filed a second paragraph of complaint. To the entire complaint the appellee, Lamb, separately answered in two paragraphs; but the first paragraph, being the general denial, was subsequently withdrawn. Appellant demurred to the second paragraph of appellee’s answer, upon the ground that it did not state facts sufficient to constitute a defence' to his, appellant’s, action. This demurrer was overruled by the court at special term, and appellant at the time excepted, and failing and refusing to reply or plead further, the court adjudged that he take nothing by his suit, and that appellee, Lamb, recover his costs herein. Upon appeal this judgment of the court at special term was affirmed by the general term, and from the judgment of the general term appellant, Pressley, now here prosecutes this appeal.
By a proper assignment of error here he has brought before this court the errors assigned by him in general term. By these errors he calls in question the sufficiency of the facts stated in the second paragraph of appellee’s answer to constitute a defence to his, appellant’s, action, and the decision of the court at special term in overruling his demurrer to such second paragraph of answer.
It does not appear from the record before us, that appel
In the second paragraph of his complaint the appellant has fully and accurately stated his cause of action, and, before considering the errors of which he complains, it is proper, we think, that we should give the substance of such second paragraph. Appellant alleged in such second paragraph of complaint, that on the 25th day of August, 1884, he recovered a judgment in the Marion Circuit Court, of this State, against the defendants, Alfred and John C. S. Harrison, for $9,929.02, and costs taxed at-dollars, and thereafter, on the same day, caused an execution to be issued on such judgment to the sheriff of Marion county, which execution was then in the hands of such sheriff, wholly unsatisfied ; that at the time such judgment was so rendered and such execution issued, and theretofore, on July 18th, 1884, such, judgment defendants were the owners of a large amount of personal property, in excess of the amount exempt from execution, consisting of money, office and bank furniture, fire and burglar-proof safes, farming utensils and machinery, hay and other agricultural products, bills, notes, accounts and other choses in action and credits, and other personal property, the character of which was unknown to appellant, ■and also of a number of lots and parcels of real estate, particularly described, in Marion county, Indiana; that the defendants, Alfred and John C. S. Harrison, on and before the 18th day of July, 1885, were partners in the banking business, under the firm name of “A. & J. C. S. Harrison,” and, in that character, had contracted and owed the debt to appellant, for which such judgment was recovered, and were the owners of all the property, real and personal, thereinbefore described, the same being partnership assets, except the
Appellant further alleged that on the 18th day of July, 1884, defendants Alfred and John C. S. Harrison suspended payment in their said banking business, and became and were insolvent, as such partners and as individuals ; and being so insolvent, but there being no controversy as between themselves, they agreed between themselves to place all their partnership assets and property, and all their individual property and assets subject to execution, in the hands of a receiver to be appointed by one of the judges of the superior court of Marion county, wherein they both resided, to be administered by such superior court by and through such receiver, and distributed to their creditors under the orders of such court, and thereby to prevent any of their creditors from taking any of such property on execution for the satisfaction of their debts; and to that end they further agreed that a proceeding, in the form of an ordinary civil action, should be forthwith commenced in such superior court, to which Alfred Harrison should be made an ostensible plaintiff, and John C. S. Harrison an ostensible defendant, and which proceeding, while adversary in form, should in fact be of a friendly and agreed character, and should be prosecuted without any opposition thereto being made by the ostensible defendant, John C. S. Harrison, but, on the contrary, with his active assistance, so that, without any delay, the appointment of a receiver should be procured, in whose hands all the property, partnership and individual, of Alfred and John C. S. Harrison should be placed, and thereby their creditors prevented from taking the same in execution for the satisfaction of their debts.
And appellant averred that in execution of such agreement, defendant John C. S. Harrison personally employed attorneys to commence such proceeding in the name of Alfred Harrison as plaintiff, and against himself as defendant, and
“ The plaintiff complains of the defendant and says, that plaintiff” and defendant are partners doing business as bankers, at Indianapolis, Indiana, under the firm name of ’A. & J. C. S. Harrison/ and have been, as such partners, doing such business for twenty years last past; that ‘ a run ’ has been going on, by their depositors, against their said bank for several days last past, whereby their cash resources have been so much reduced that they are unable longer to continue said banking business, and said firm is therefore insolvent; that, in order to prevent a multiplicity of suits and thereby cause great expense in litigation, and in order to save said estate for their creditors, it is important that a receiver be now appointed for said firm to take possession and control of the assets of such firm, and administer the same under the order of the court; that a dissolution of such partnership be had, and an accounting between the partners. Wherefore,” etc.
This complaint was signed by the attorneys of the plaintiff therein; and such attorneys, appellant alleged, at the same time and by the procurement of John C. S. Harrison, in further execution of the agreement between him and Alfred Harrison, prepared the answer to such complaint of John C. S. Harrison, signed by him in person, wherein he, “ the defendant in this cause, admits the allegations of the complaint herein to be true;” that such answer was filed by John C. S. Harrison in the clerk’s office of such superior court, at the time the complaint of Alfred Harrison was filed as aforesaid; and when such complaint and answer were so filed, and at all times thereafter until the first Monday of September, 1884, the superior court of Marion county was in vacation; that no summons or other process, or publication, was ever issued
And the appellant averred that no summons or other process or publication was ever issued or made on such pretended supplemental complaint, nor served on John C. S. Harrison, nor was service thereof acknowledged by him, but, after such papers were filed in the clerk’s office as aforesaid, they were presented to Judge Lewis C. Walker by such attorneys and by John O. S. Harrison in person (Alfred Harrison not being present in person, nor represented otherwise than as the aforesaid attorneys, who prepared such papers by the procurement of John C. S. Harrison, assumed to represent him), and thereupon Judge Walker on such day, in vacation, without any other or different proceedings or action being had or taken in such matter, than as thereinbefore stated, and acting solely upon such pretended complaint and supplemental complaint and answers thereto, and upon the personal consent and agreement of John C. S. Harrison thereto, and at his instance and procurement, as well as that of Alfred Harrison, as thereinbefore shown, made an order appointing appellee, Robert H. Lamb, receiver of all the assets, partnership and individual, of Alfred and John C. S. Harrison, and directed that, upon his executing bond and taking oath as such receiver, he should immediately take into his exclusive possession and control, and hold and dispose of, under the orders of the court to be thereafter made, all of said partnership and individual property; that appellee Lamb thereupon gave bond and took the oath required of him by such order, to the approval of such judge, and at once, as such
Appellant further averred that, on the 19th day of July, 1884, the defendants Alfred and John C. S. Harrison, each for himself as an individual, executed a deed of assignment of all his individual real and personal property to appellee Lamb, under the voluntary assignment law of this State for the benefit of creditors, and such deed was, on the same day, recorded in the recorder’s office of Marion county; that appellee Lamb held possession of such property by no other or different authority or right than thereinbefore stated; that Alfred and John C. S. Harrison had not, nor had either of them, any property out of which appellant could procure satisfaction of his judgment, or any part thereof, other than such as was then in the possession of appellee Lamb; and that, by reason thereof, appellant was without remedy for the-collection of his judgment, unless the court would decree-that the appointment of appellee Lamb as receiver, so made in vacation and by the consent and agreement of defendants,. Alfred and John C. S. Harrison, was without jurisdiction, and fraudulent and void, and vested in appellee Lamb no right to the possession of such property, or any part thereof, as against appellant’s judgment and execution, and his rights-thereunder. Wherefore, etc.
We have given a fuller summary of the facts alleged in
The substance of the first paragraph of appellant’s complaint is given in our opinion on the former appeal (102 Ind. 14), and, as we have heretofore said, need not be repeated. We may say, however, that the fundamental and controlling question in the minds of the court, presented in and by such paragraph, then the only complaint, and decided by this court, is wholly eliminated and withdrawn from the second paragraph of complaint now under consideration. The question thus presented and decided is stated in the syllabus of our opinion on the former appeal as follows: “ The filing and delivery to the judge by the plaintiff of papers purporting to be signed by the defendant can not constitute an appearance by the defendant to the action or to the plaintiff’s motion for a receiver.” That is, briefly stated, the plaintiff in a suit can not appear for the defendant therein, and by filing and
We have given the substance of the second paragraph of appellant’s complaint for another reason. So far as the naked facts of this case are concerned, without any coloring or qualification on either side by adjectives or epithets, there is no substantial difference between the averments of appellee’s answer and the allegations of the second paragraph of appellant’s complaint, so far as the latter goes. There are some facts stated in the answer, however, and admitted by appel
To that end, apparently, and in addition to the facts stated in the second paragraph of appellant’s complaint, the appellee alleged, in substance, among other things, that for more than thirty years prior to, the 18th day of July, 1884, Alfred Harrison and John C. S. Harrison had been engaged in the business of private bankers in the city of Indianapolis, carrying on and conducting a bank of discount and deposit, under the firm name of “A. & J. C. S. Harrison,” and had acquired and held in their partnership name and business, for the use and benefit of their firm, a large amount of real estate, personal property, rights, credits and effects, of the value, to wit, of $100,000, and more; that, *on the day last named, A. & J. C. S. Harrison had become and were largely indebted to divers persons, firms and corporations, in the sum, to wit, of $600,000, and had thereby become hopelessly insolvent; that, in consequence of their indebtedness and embarrassment, they had become and were unable to continue their banking business, as they each well knew, and it became apparent to each of them that, unless steps were immediately taken to place their assets and effects under the control of a competent court, the same would be wasted and lost to a great extent in costs and expenses of litigation, by means whereof only a few of their creditors would receive any part of their claims or debts.
Appellee then alleged in his answer, that he had been sued as such receiver, in the courts of this State and elsewhere, giving the particulars;'that he had sold property and assets here and elsewhere, which had come to his hands as such receiver, and received the money therefor, giving the particulars ; and that he had sold real estate belonging to the firm of A. & J. C. S. Harrison, and having received the purchase-money, had executed conveyances thereof under the order of the court. And appellee further said, that he had employed counsel to conduct litigation growing out of and connected with the administration of his trust; and that, in all his conduct of the business of such trust, he had acted in good faith and in the honest belief that his appointment, as such receiver, was legal and valid. And appellee averred the fact to be -that, at the time the complaint of Alfred Harrison
As we have already said, the sufficiency or, as appellant claims, the insufficiency of the facts stated in appellee’s answer to constitute a defence to appellant’s suit herein, is the only question we are required to consider and decide; and this question was presented to the court below in general term, and is properly presented here by the alleged error of the court at special term, in overruling the demurrer to such answer.
It is manifest, we think, that in the proceedings had, and the orders made, by and before Judge Walker, sitting in his chambers, in vacation, in the suit of Alfred Harrison v. John C. S. Harrison, for the appointment of a receiver for the insolvent banking firm of A. & J. C. S. Harrison, the learned judge and the parties to such suit acted, or intended to act, and believed they were acting, under and in conformity with the provisions of our civil code in relation to the appointment of receivers. In section 1222, R. S. 1881, in force since September 19th, 1881, it is provided as follows:
“A receiver may be appointed by the court, or the judge thereof in vacation, in the following cases:
“First. In an action by a vendor to vacate a fraudulent purchase of property, or by a Creditor to subject any property or fund to his claim.
“Second. In actions between partners, or persons jointly interested in any property or fund.
“Third. In all actions, when it is shown that the property,*184 fund, or rents and profits in controversy is [are] in danger of being lost, removed, or materially injured.
“Fourth. In actions by a mortgagee for the foreclosure of a mortgage and the sale of the mortgaged property, when it appears that such property is in danger of being lost, removed, or materially injured; or when such property is not sufficient to discharge the mortgage debt, — to secure the application of the rents and profits accruing before a sale can be had.
“Fifth. When a corporation has been dissolved, or is insolvent, or is in imminent danger of insolvency, or has forfeited its corporate rights.
“Sixth. To protect or preserve, during the time allowed for redemption, any real estate or interest therein sold on execution or order of sale, and to secure to the person entitled thereto the rents and profits thereof.
“Seventh. And in such other cases as may be provided by law; or where, in the discretion of the court, or the judge thereof in vacation, it may be necessary to secure ample justice to the parties.”
In the foregoing section, and in every section of the civil code in relation to receivers, it will be seen that the judge of the court in vacation is clothed with exactly the same power and authority, no greater and no less, as is the court itself when in regular and open session. In the vacation of his court the judge thereof has the power and authority to appoint receivers in any of the cases specified in section 1222, above quoted, or in any other case provided by law, or when, in his discretion, it may be necessary to secure ample justice to the parties, he may order property, which is the subject of litigation, to be deposited in court, or with the clerk thereof in vacation, or delivered to the party subject to his further order or that of the court; he may punish the disobedience of any such order as for contempt, and, in addition, may make an order requiring the sheriff to take the money or thing, and deliver it or deposit it in conformity with his direction
When the judge of a court, in vacation, is engaged in doing these acts and making these orders, it is clear, we think, that he is exercising quoad hoe “the judicial power of the State,” and that his acts, orders and proceedings in the premises, although had in vacation, are the judicial proceedings of the court whereof he is judge. In section 1, of article 7, of our State Constitution of 1851, as such section was amended March 14th, 1881, it is provided as follows: “The judicial power of the State shall be vested in a Supreme Court, in circuit courts, and in such other courts as the General Assembly may establish.” Section 161, R. S. 1881.
In Shoultz v. McPheeters, 79 Ind. 373, after quoting this section of the Constitution, the court said: “All judicial powers are, by force of this provision, vested in the courts of the State. The Legislature has no authority to invest any other tribunals than the courts with judicial powers. It is certain that the Legislature can not exercise judicial powers. Columbus, etc., R. W. Co. v. Board, etc., 65 Ind. 427; Doe v. Douglass, 8 Blackf. 10; Young v. State Bank, 4 Ind. 301. Nor can these powers be vested elsewhere than in the tribunals designated or indicated by the Constitution. Judicial powers can not be delegated.” Accordingly, it was held in the case cited, that section 1404, R. S. 1881, wherein it was attempted to confer judicial power upon master commissioners in certain cases, was unconstitutional and void. So, also, in Gregory v. State, ex rel., 94 Ind. 384 (48 Am. R. 162), it was held, in view of the constitutional provision above quoted, that judiciál power can not be conferred by statute upon the clerks of courts.
It is true, however, that, in alegal sense, the judge of a court
It is in this legal sense, we think, that the words “judge thereof in vacation,” so often mentioned in the sections of the code before referred to, relating to receivers, should be taken and understood to mean “ court in vacation.” In other words, the phrase “ the court, or the judge thereof in vacation,” so often found in those sections, by supplying or filling a manifest ellipsis and the interchange of synonyms, may be made to read, in strict accordance with the legislative intent, and in perfect harmony with the constitutional provision above quoted, as follows: The court when in lawful session, or the court in vacation; or thus : The judge in term, regular, adjourned or special, or the judge in vacation. When Alfred Harrison, by his attorneys, filed his complaint against John C. S. Harrison, and appeared therewith before Judge Walker, and when the defendant therein filed his answer to such complaint, and, without process, appeared before and submitted his answer to Judge Walker, sitting in chambers, in vacation, in a cause or matter of which the court, whereof Judge Walker was judge,- had jurisdiction, we are of opinion that the court, or judge in vacation, thereby acquired fiill and complete jurisdiction of the subject-matter of such suit, and of the persons of the parties, plaintiff and defendant. The defendant had the legal right to appear in person for himself, without the issue or service of process. His voluntary appearance in the suit was equivalent to service of process therein, and such suit was commenced from the time of such appearance. Sections 315 and 1230, R. S. 1881.
It must be borne in mind that the legislation of this State,
“ Receivers shall not be appointed, either in term or vacation, in any case, until the adverse party shall have appeared, or shall have had reasonable notice of the application for such appointment, except upon sufficient cause shown by affidavit.”
This section, it will be seen, provides for the voluntary appearance of the adverse party before the court or judge, either in term or vacation, or else that such party must have had reasonable notice of the application to the judge or court, either in term or vacation. But to what end shall the adverse party appear, or shall he be given reasonable notice •of the application, if not to confer jurisdiction of his person upon the court or judge, either in term or vacation? Fairly construed, this section so strongly implies, as to* strongly affirm, that receivers may be appointed by the judge or-court, either in term or vacation, in any proper case, when .the adverse party voluntarily appears before either the court or judge, or has had reasonable notice of the application, either in term or in vacation. If the adverse party voluntarily appear, or if, upon reasonable notice, he either appear or make default before the judge or court, either in term or
In the light of section 1230, above quoted, we are of opinion that these questions, each and all, must be answered in the negative. As already stated, it must be held that the voluntary appearance of John C. S. Harrison to the complaint of Alfred Harrison against him, before Judge Walker in vacation, in a suit whereof the judge in vacation has the same judicial cognizance, and as to which he is by law clothed with the same judicial power of the State, as the court in term of which he is judge, is equivalent to the issue and service of process therein; and the suit must be deemed to have been commenced at and from the time of such appearance.
In section 1231, supra, it is provided as follows: “In all cases hereafter commenced or now pending in any of the courts of this State, in which a receiver may be appointed or refused, the party aggrieved may, within ten days thereafter,
It will be observed that this section of the civil code makes no provision, in express terms, for any appeal from the orders of the judge in vacation, either appointing or refusing to appoint a receiver. Yet it can not be doubted, as it seems to us, that in the enactment of this section of the code, the General Assembly intended to and did provide that whenever the court or judge, either in term or vacation, in any case thereafter commenced or then pending, might appoint or refuse to appoint a receiver, the party aggrieved might, within ten days thereafter, appeal from the decision of the court or judge, either in term or vacation, without awaiting the final determination of the case. This is the construction given this section of the code in Barnes v. Jones, 91 Ind. 161, which was an appeal from the appointment of a receiver by the judge, in vacation, where, as in the case of Alfred Harrison v. John C. S. Harrison, the relief sought was the dissolution of a partnership and the appointment of a receiver, and the order of the judge was affirmed by this court. This section of the code and the construction we have placed upon it give strong support, we think, to our opinion already expressed, that the words “court” and “judge,” as they are used in the sections of the code providing for the appointment of receivers, and for the management and disposition of property in their hands, may well be regarded as synonyms, each of the other.
Whether the complaint of Alfred Harrison, or the answer of John C. S. Harrison, be good or bad, or whether the court, or judge in vacation, committed error in any of the acts, orders or proceedings, had or done upon such complaint and answer, are questions we are not raquired to consider and decide in the case in hand. Such acts, orders or proceedings, even though they might be found to be erroneous, were certainly not void, because, as we have seen, the court or judge in vacation had jurisdiction of the subject-matter and of the
It was claimed in argument by appellant’s counsel that the suit and proceedings before Judge Walker, in vacation, which resulted in appellee’s appointment as receiver, were in contravention of the terms of the statute providing for voluntary assignments by insolvent debtors of all their property, in trust for the benefit of all their creditors. This claim is wholly untenable, as it seems to us, and can not be sustained. There is no substantial conflict between that statute and the provisions of the civil code, in relation to the appointment of receivers. But if there were such conflict, it needs no argument to show that the statute in question must give place to the provisions of the code, as the later expression of the legislative will. The voluntary assignment law took effect on March 5th, 1859, while the provisions of the. civil code for the appointment of receivers, in certain cases, became a part of our law, on September 19th, 1881. The statute and the provisions of the code referred to, we think, may well stand together as parts of our law. While it is true that the firm of A. & J. C. S. Harrison might, not under the letter of the statute, but under its provisions as construed by this court, have made a voluntary assignment in trust for their creditors, yet, it must be held that this fact would not preclude either member of the firm from resorting to a court of equity for the appointment of a receiver. Under either procedure, the
The Marion Superior Court is a court of general jurisdiction, and, as such, is clothed with the judicial power of the State. Its proceedings, whether in term or vacation, are judicial proceedings, and can not be collaterally attacked. We conclude, therefore, in the case at bar, that appellee’s answer is a complete defence to appellant’s cause of action, and that the demurrer to such answer was correctly overruled.
We find no error in the record of which appellant can complain.
The judgment is affirmed, with costs.
Mitchell, J., dissents, and will file a dissenting opinion.
Elliott, J., took no part in the decision of this cause.
Dissenting Opinion
Dissenting Opinion.
Unable to concur with the majority, the following are some of the reasons upon which my dissent is based :
That an action must be pending before either a court in term or a judge in vacation can acquire jurisdiction to appoint a receiver, unless in exceptional cases expressly provided for by statute, has, I think, never been the subject of judicial controversy. Upon this the authorities are everywhere in accord. Dale v. Kent, 58 Ind. 584; Brinkman v. Ritzinger, 82 Ind. 358; Pressley v. Harrison, 102 Ind. 14; Merchants’, etc., Bank v. Kent, 43 Mich. 292; Hardy v.McClellan, 53 Miss. 507.
The remedy is merely an auxiliary to, and an incident of, a pending suit. Hottenstein v. Conrad, 9 Kan. 435; Chicago, etc., Mining Co. v. U. S. Petroleum Co., 57 Pa. St. 83; Bufkin v. Boyce, 104 Ind. 53.
A receiver is only resorted to in any case to preserve property in statu quo, pending a contest. The case pending must
The statute applicable in that respect provides that “ receivers may be appointed by the court or judge thereof * * * in actions between parties, or persons jointly interested in any property or fund.”
As requisite to the pendency of an action in which a receiver may be appointed, it is essential that a written complaint or petition exhibiting something in the nature of a controversy or cause of action of equitable cognizance shall have been filed.
This is required by the statute, as well as by the course of judicial procedure recognized everywhere, to the end that a subject-matter shall be brought within the jurisdiction of the court. Two things are indispensable before the intervention of any court can be invoked to pronounce judgment inter partes: 1. A controversy of some kind between parties involving legal or equitable rights. 2. That the matter in controversy shall be presented in such manner that the court may act judicially in the premises. Without these, a court can not proceed to give judgment, even with the consent of the parties. These being absent, nothing is pending before the court.
In Morrow v. Weed, 4 Iowa, 77, it was said : “ If there be a petition, or the proper matter of that nature, to call into action the power or jurisdiction of the court, the sufficiency of it can not be called in question collaterally.” City of Terre Haute v. Beach, 96 Ind. 143.
Admitting to the fullest extent that where a receiver has been appointed in a pending action, the sufficiency of the complaint in that action can not be drawn in question collaterally, the difficulty in this case still remains, that in the proceeding in which the receiver was appointed, it affirmatively appears
While it is not necessary, for the protection of a purchaser from a receiver, that the proceedings and appointment should appear to be regular, the rule is that three things are essential: 1. He must see that a suit in equity was pending in which a receiver was appointed. 2. That the receiver was authorized by the court to sell the property in controversy. 3. That a sale was actually made under such authority. Koontz v. Northern Bank, 16 Wall. 196.
If there was no suit in equity, inter partes, when the receiver was appointed, the appointment was a nullity and would be disregarded whenever it came in question, unless by acquiescence, an estoppel intervened. People v. Judge, 31 Mich. 456.
It is settled that a judgment in a case requiring adversary proceedings is void whenever it appears on its face, or may be shown by evidence, to have been rendered without jurisdiction of a subject-matter. Horner v. Doe, 1 Ind. 130; McCormack v. First Nat’l Bank, 53 Ind. 466.
To my mind, the complaint which is set out in the opinion •of the court exhibits nothing in the nature of a controversy of any kind between the partners. It states no facts tendering any kind of an issue or upon which a judgment of any kind could have been pronounced. Nothing is complained of, except that the depositors of the bank have demanded their money with such persistency that the bank has become insolvent. It informed the court that in order to prevent a multiplicity of lawsuits and secure an equal distribution among creditors, it was important that the court should take control of the business of the firm by appointing a receiver. No disagreement between the partners appearing, or other reason why the end desired could not be accomplished by resorting to the statutory method, the intervention of a ■court was neither necessary nor proper to accomplish a vol
If any doubt had remained as to the purpose of this so-called complaint, it must have been dissipated when the supplemental complaint was filed. In this it was averred that the partners were possessed of a large amount of individual real and personal property which they were willing to surrender for the benefit of their creditors, and which the court, was' asked to take control of. The whole proceeding was,, without any disguise whatever, an appeal to a judge in vacation to take the individual and firm property of the Harrisons under the shelter of the court.
To my mind, it was of no more legal force than if they had made the same appeal to any other individual. See Shoemaker v. Smith, 74 Ind. 71. As was said in Sage v. Memphis, etc., R. R. Co., 18 Fed. Rep. 571: “ It is also apparent that this is not an adversary proceeding, but one in which the parties complainant and defendant have acted in concert.”
I do not understand that a court of equity can acquire jurisdiction to take upon itself the administration of the affairs of a bank or the distribution of the private estates of bankers, on request, simply because the bank has become unprofitable: or insolvent and a source of annoyance to its owners.
The rule was forcibly stated in Overton v. Memphis, etc., R. R. Co., 10 Fed. Rep. 866, thus: “ It is not the province of a court of equity to take possession of the property, and conduct the business of corporations or individuals, except where-the exercise of such extraordinary jurisdiction is indispensably necessary to save or protect some clear right of a suitor, which would otherwise be lost or greatly endangered, and which can not be saved or protected by any other action or mode of proceeding.”
To characterize a paper like that set out as a complaint, or bill in equity, is to disregard the substance and grasp at that which is less substantial than a shadow. Either it must be-conceded that a receiver may be appointed upon request of
If, however, it be conceded that there was a sufficient complaint to call into action the jurisdiction of the court over aisubject-matter, it was nevertheless necessary to the pendency ■of an action that process should have been issued, or that the' defendant should have appeared in some- manner known- to the law, so as to give the court jurisdiction of his person.
It has heretofore been well settled in this State that a court can acquire jurisdiction of the person- of a defendant in no other way than through its process or by a voluntary appearance in the case entered of record in open- court in term time.
That no summons was issued is conceded, and that no other appearance by the defendant was made in the case except to go before the judge at chambers and present his written consent that a receiver might be appointed,, is also admitted. In the prevailing opinion this is held to have been such an appearance in court to the case as constituted it an action pending at the time the receiver was appointed.
The scope and effect of the holding, is that a judge-sitting in vacation, exercising special statutory powers, such as are involved in the appointment of a receiver, etc., becomes the. court of which he is the judge, and that such proceedings before him are proceedings in such court; that an appearance before a judge so sitting is such an appearance in court as confers original jurisdiction over the person of the defendant, and without any other process or appearance makes the matter upon which the judge acts a case pending in court. It seems to be implied, too, that to the proceedings of a judge so acting all the presumptions which attach to the proceedings of courts of general jurisdiction will be indulged when they are drawn in question collaterally. With deference to the
The extent to which any court has gone in respect of upholding the jurisdiction of a court under like circumstances, so far as I can discover, is, to hold that where it appears in an order appointing a receiver, by the recitals in the order, that an action was pending, such recital constituted prima facie evidence of the pendency of the action. Such recitals are not conclusive, and may be contradicted. Potter v. Merchants’ Bank, 28 N. Y. 641.
It is the rule in the Federal court, and many of the States, that where a court of general jurisdiction exercises 'a special statutory power, which was not according to the course of the common law, its jurisdiction, both as to the subject-matter and the person, must affirmatively appear, and everything will be presumed to be without its jurisdiction which is not affirmatively shown to be within it. Galpin v. Page, 18 Wall. 350.
The argument on which the prevailing opinion rests is, that the appointment of a receiver is the exercise of a judicial function, and that as under the Constitution judicial power can only be conferred upon courts, a judge while ap
It is difficult to see in what respect the exertion of judicial power is involved, where, as in this case, the sole purpose of the appointment of a receiver appears to be to effect an assignment for the benefit of creditors. In my opinion it might as well be said that such an assignment was a judicial act, and could only be made by the intervention of a court. That the power to pronounce a judgment which determines or finally adjudicates upon the rights of persons or the title to property is a judicial function which can only be conferred upon courts, is well settled. There are, however, many orders made in cases pending and many proceedings had in matters temporarily affecting property, the making of which are not regarded as the exercise of judicial functions. Thus in the case of Carey v. Giles, 9 Ga. 253, the question was directly made whether the appointment of a receiver was the exercise of judicial power. Lumpkin, J., delivering the judgment of the court, said: “Was the appointment of a receiver a judicial act? If so, it is very clear that it could not be made by the Legislature, without violating an express provision of the Constitution. But it does not seem to us to be of this description of power. It was not a case of controversy between party and party; nor is there any decree or judgment affecting the title to property; it determines no right, legal or equitable. The receiver is merely to collect, hold and disburse the assets of the bank for the benefit of all concerned; and it is in the power of the courts to direct and control him in the proper execution of his duties.” So, also, in an analogous case, Foote v. Forbes, 25 Kan. 359, it was held that orders made by a judge at chambers, in granting and dissolving a temporary restraining order, were not judicial acts. The court there said: “ It is not an adjudication that can affect anything further than the granting or dissolving of the injunction; and except for the granting or dissolving of the injunction, it is no adjudication at all.” See, also, Toledo,
Under an act of Congress the comptroller is authorized to appoint receivers in certain cases, and his authority in that regard has often been maintained in the courts.
To the foregoing might be added many other cases of like import, but as I should not feel inclined, without further consideration, to go to the extent of holding that the appointment of a receiver or granting an injunction under our statute was not in such sense a judicial act as that the power to make such appointments could only be conferred upon a judicial officer, who while exercising such power, constituted a special tribunal or court in a limited sense, I pursue the inquiry no further. That quasi judicial powers may be conferred upon tribunals which are not courts, in the strict sense of the term, there can be no doubt. Shoultz v. McPheeters, 79 Ind. 373; United States v. Ferreira, supra. Such are the powers which are Conferred by statute upon a judge in vacation, and such a court is constituted when a judge acts in obedience to the powers thus conferred.
The power of a judge in vacation was the subject of judicial consideration at a very early period in the history of this court, and his power and jurisdiction, and the relation which he occupied to the court of which he was the judge, were defined in a manner consistent with the whole course of legislation and judicial interpretation since. Newman v. Hammond, 46 Ind. 119; Ferger v. Wesler, 35 Ind. 53; Batten v. State, 80 Ind. 394; Cain v. Goda, 84 Ind. 209.
In the case of Taylor v. Moffatt, 2 Blackf. 305, after defining the jurisdiction and power of a judge, sitting in term, the court said: “But when he is acting in vacation his situation is different: his jurisdiction is special and limited. He can not be strictly said to be acting as a court of chancery.” So, again, in the case of City of Columbus v. Hydraulic, etc., Co., 33 Ind. 435, in which it was held that the judge of the common pleas court had power to issue an injunction in a
That a judical officer may be clothed with certain limited ■statutory powers of a judicial character, can not be questioned, and that in a certain limited sense he is, while exercising those powers, a court, may be admitted, but it does not follow that he thereby becomes the court of which he is the judge, or that he has any jurisdiction beyond the express letter of the statute. Upon this subject the Supreme Court of California said, in the case of Spencer Creek Water Co. v. Vallejo, 48 Cal. 70: “It is beyond question that the county judge is not the county court, and although the Legislature may authorize the judges of the several courts to perform certain duties, at chambers, in respect to proceedings in a cause, yet some court has jurisdiction of the cause, and the judge, in chambers, whether of the same or another court, acts as a commissioner, or in some other capacity, merely in aid of and .subordinate to the court having jurisdiction of the cause.”
In the case in which the appellee in this case was appointed receiver there was no action pending in court, in aid of whose jurisdiction the judge at chambers acted. The question is, could the judge, by taking jurisdiction over a defendant who came before him to consent to the appointment of a receiver, thereby constitute the case in which the receiver was appointed an action pending ? Could he, by taking original jurisdiction over a defendant in a matter not pending in any ■court, acquire a jurisdiction which he could only exercise in a pending cause?
Under section 7, Acts 1883, p. 180, an appeal may be taken from the action of a township trustee in a drainage case, but that fact does not constitute the trustee a court.
While sitting in vacation, a judge does not come within any known definition of a court as ordinarily understood. While holding court in one county, he may, upon proper application, make an order appointing a receiver, or grant an injunction, in a case pending in any other county in his circuit. This practice prevails uniformly, and has been upheld in this court.. Thus it might often happen that one judge might at the same time have the circuit court of two counties open for appearances and proceedings, and in that manner constitute the circuit court in two counties during the same period.
A judge sitting a hundred miles from the county seat,, without any record before him, might nevertheless take proceedings and enter the appearance of a defendant in a cause not yet commenced. It would thus result that the evidence
It was said in Blair v. Reading, 99 Ill. 600: “ It is a fundamental principle that courts can exercise judicial functions only at such times and places as are fixed by law, and that the judges of courts can enter no orders in vacation except such as are expressly authorized by statute.”
There is no statute or precedent which authorizes an appearance to be entered before a judge sitting in vacation, nor have we any statute which prescribes what acts shall constitute an appearance. What shall constitute an appearance, therefore, rests upon the well established rule of the common law, as it has been perpetuated and declared time out of mind. According to this rule, steadily maintained and often declared by this court, an appearance is the making of some formal entry, plea, motion, or official act in open court. It is essential that this should be of record; it can be proved only by the record. Scott v. Hull, 14 Ind. 136. Moreover, it has been repeatedly ruled by this court, that whenever the law contemplates the doing of an act by or in a court, “ it is and must be understood that the court in term time may or must do it, and the judge in vacation can not, unless the power is expressly conferred upon him by law.” Newman v. Hammond, 46 Ind. 119. Ferger v. Wesler, supra; Batten v. State, supra.
Thus it was said in McCormack v. First Nat’l Bank, 53 Ind. 466 : “An appearance, according to the ancient practice, purports to be a proceeding in term time, and that theory still exists in legal contemplation.” Unless, therefore, it can bo held that a judge sitting in vacation is not only the court of which he is the judge, but that his sitting constitutes part of a term of court, an appearance can not be entered before him within any precedent that I have been able to find. The rule, forcibly and tersely announced in the language above
It is especially because the prevailing opinion, as it seems to me, overturns this rule thus maintained, and announces ■one which, in my judgment, is anomalous, and, so far as I have been able to discover, without precedent anywhere, that 1 am unable to yield my assent to it.
In my opinion it would be much better to hold that a receiver might be appointed without any action pending at all, than to bring about the pendency of the action by a holding which constitutes a judge in vacation, wherever he may happen to be, the court, before whom parties may enter an appearance, which has uniformly heretofore been required to be entered in term time, and proved only by the record made in open court.
The rule, as it has been strictly held by this and other courts, has been, that all business and matters which pertain to the general jurisdiction of courts can only be transacted when the court is in session in regular or special term, sitting with its clerk, record and officers as a coui’t. Business which may be transacted at any other time is exceptional, and for authority to do it express warrant must be found in the statute.
For the foregoing reasons I think an appearance can not be entered for the first time before a judge in vacation, and that pleadings in the case can not be filed with or entertained by him. The pleadings referred to in section 1225, E. S. 1881, are very clearly pleadings filed in the case in court. This is consistent with the practice of the chancery courts, in which an application for the appointment of a receiver is never entertained, unless upon an emergency shown, until the answer of the defendant to the bill is brought in.
It may be inferred from the opinion of the majority, that
A receiver is an adjunct of a court of chancery, an indifferent person to take charge of and preserve property which is the subject of litigation until the suit involving the title is terminated and the right to the property settled. Moreover, it is a cardinal principle, everywhere enforced, that a receiver will never be appointed by a court of chancery if there is any other expedient remedy available to accomplish the same end for which the receiver is applied for. Thus, where proceedings were instituted to wind up a banking corporation for the appointment of a receiver to wind up its affairs, but it was apparent from the bill that the matters might be remedied by following the prescribed course of law, the application was not entertained. High Receivers, sections 10, 301, 403, 555, 592.