Opinion
Decided June 7, 1926.
Receivers — Jurisdiction of common pleas court to appoint — Interested parties may move for discharge, when — Power to appoint cannot be challenged after court term, when.
1. Power of court of common pleas to appoint receiver cannot be challenged by motion to dismiss and discharge receiver made after term when appointment was made.
2. Court of common pleas has jurisdiction to appoint receivers in proper cases.
3. Interested parties may move discharge of receiver at any time after appointment.
ERROR: Court of Appeals for Hamilton county.
Messrs. Burch Peters, for plaintiffs in error.
Mr. John H. Doyle, Mr. Elmer L. Conway, Mr. Joseph B. Derbes, and Mr. George Bailes, for defendants in error.
The record in this case discloses that on September 19, 1925, a petition was filed, alleging misconduct in the management of the property of the corporation on the part of some of the members of the board of directors, and by reason thereof the imperiling of the assets of the corporation, and asking for a dissolution of the corporation and the appointment of a receiver.
An answer was filed by some of the members of the board of directors and officers, and on behalf of the company, consenting to the appointment of the receiver, and, on the same day the petition was filed, the receiver was appointed. The receiver took charge of, and conducted, the business under the orders of the court. Appraisements were made, money was borrowed, accounts were paid, and bills collected. This continued until March 1, 1926, when, on behalf of some of the creditors of the corporation, a motion was filed to set aside the appointment of the receiver. The motion was asked on the grounds:
(1) That the court was without jurisdiction to appoint the receiver.
(2) That the court conferred greater powers upon the receiver appointed herein than is authorized by law and the power granted is beyond the jurisdiction of the court.
The court of common pleas overruled the motion for the discharge of the receiver. Error is prosecuted to this court from the judgment overruling the motion.
Counsel for the movers predicate their right to a reversal on the ground that the court was without jurisdiction to appoint a receiver in the cause, that his act was void, and they present authorities to sustain their point.
The arguments of counsel for plaintiffs in error, and the authorities cited, all go to the question of the power of the court to appoint a receiver in such an action, and attack the validity of the appointment made September 19, 1925. We do not understand that this question can be challenged; that is, the power of the court to appoint a receiver made some five or six months after the appointment was made, and after the term in which the appointment was made. The court of common pleas has jurisdiction to appoint receivers in proper cases. Whether or not this was a proper case should have been determined at the term in which the appointment was made, and, in case of an adverse decision, error should have been prosecuted from the judgment making the appointment.
What the situation was, and what the facts were that caused the court to act in making the appointment, is not presented here; in other words, that judgment has not been attacked, and is not before us.
We do not hesitate to say that we have read the petition and that on the face of the petition, under the rule laid down in the case of Cincinnati, Hamilton Dayton Ry. Co. v. Duckworth, 2 C.C., 518, which is still the law, the court should not have made the appointment. Since no action was taken within the term in a matter in which the court had jurisdiction, under its general powers and under the statute, that judgment cannot be attacked in the manner attempted here.
There can be no question that the parties interested might move the discharge of the receiver at any time, and that question be presented on the situation existing at the time the motion was filed, but there is nothing in the record here to show a situation calling for the court, in its discretion, to discharge the receiver, and return the property to the corporation.
In the absence of any proof disclosed by the bill of exceptions, warranting the discharge of the receiver at this time, or at the time of the hearing on the motion, the judgment overruling the motion will be affirmed.
Judgment affirmed.
BUCHWALTER, P.J., and CUSHING, J., concur.