174 Ind. 291 | Ind. | 1910
On August 9, 1909, appellant Robbins began in the’ Sullivan Circuit Court his suit against appellee Reed, alleging, in substance, that he (Robbins) had for five years been engaged in'business as a merchant; that Reed had no interest in said business, but that plaintiff had employed Reed as a clerk and salesman during the time; that in July. 1909, he had discharged Reed from the employment; that Reed refused to respect this discharge and refused to quit the service, and against plaintiff’s orders and over his objections, daily entered the store and engaged in conducting the general business thereof. Prayer that Reed be enjoined from entering the store and from intermeddling with the business in any way. On August 10, 1909, a temporary restraining order was granted until October 11, for notice to the defendant. On August 12 Reed appeared and filed his motion to dissolve the restraining order, alleging in the motion that he was and had been from the beginning of the business a full partner with plaintiff, had put in an equal .amount of capital, had given all of his time to the business, and had from the beginning practically the sole and absolute control of the business, that plaintiff had but little experience in the business, and was unskilled therein, and that defendant’s exclusion therefrom was wrongful and detrimental to the business. The motion to dissolve was overruled on August 28. On September 6, 1909, pending the suit for injunction, appellee Reed began this suit in the same court against Robbins, alleging that he and Robbins had been engaged as equal partners in the mercantile business for five years under the name and style of N. O. Robbins & Co.; that defendant had taken entire possession of their
The only error complained of is that the facts disclosed do not warrant the appointment of a receiver.
It is expressly conceded by appellant in his brief “that the evidence for plaintiff is sufficient to justify the court in the appointment of a receiver, if it does not show that appellee has an adequate remedy at law. ’ ’
“We undertake that plaintiff in the above-entitled cause will pay to defendant all damages and costs which may accrue to him by reason of all damages sustained by him in this suit. August 10, 1909.”
Appellant insists that this bond, given by him in his injunction proceeding as indemnity to appellee, afforded the latter full and adequate relief in his suit for a dissolution. A¥e think not. There is no relation between the two suits as brought. They rest upon entirely different facts and seek wholly different reliefs.
In the injunction suit appellant alleges that he is the sole owner of the store and all its assets; that appellee has no interest therein, and is a trespasser, in that he wrongfully invades the store and intermeddles with the business, after he has been forbidden by appellant, and the relief prayed is that he be compelled to keep out, and quit his interference with the business.
The object of the latter suit is to dispossess both parties, and to preserve the property, by the instrumentality of a disinterested party, for administration and distribution among the parties as their rights shall appear. The latter presents a strong case for a receiver.
To deny the appointment of a receiver in this case and to continue the injunction, and thus enlarge appellant’s opportunity to do the things charged against him in appellee’s complaint — that is, selling and otherwise disposing of the goods without keeping any account, and wasting the assets— might result in severe loss of property, for which, if a recovery could be had upon the bond (which we do not decide), would undoubtedly make it more difficult, and probably, to some extent impossible, for appellee to make his proof, and
The order of the circuit court appointing a receiver is affirmed at the costs of appellant.