Opinion
No. 27,163.
Filed February 27, 1939.
1. APPEAL — Dismissal — Grounds — Moot Questions — Effect of Dismissal of Action After Judgment. — Partner's appeal from an interlocutory order appointing a receiver at the request of a copartner did not become moot so as to require dismissal when plaintiff dismissed his action after the receiver had been appointed and taken possession of the property from the defendant and given it to plaintiff. p. 248.
2. RECEIVERS — Appointment — Appointment Without Notice — Requisites. — A receiver may not be appointed without notice unless it affirmatively appears that there is cause for appointment of a receiver, that there is cause for such appointment without notice, and a sufficient reason given for not giving reasonable notice, the conclusions of the pleader as to such matters being insufficient. p. 248.
3. RECEIVERS — Appointment — Appointment Without Notice — Complaint. — Where partner's verified complaint against his copartner failed to allege facts showing cause for appointment of a receiver and failed to request or show cause for such appointment without notice, appointment of a receiver without notice was error. p. 248.
From Delaware Circuit Court; Leonidas A. Guthrie, Judge.
Action by Frank F. Massey against John C. Hampton. From an interlocutory order appointing a receiver without notice, defendant appealed. Reversed.
George Koons and Richard L. Ewbank, for appellant.
Joseph H. Davis, for appellee.
This is an appeal from an interlocutory order appointing a receiver without notice. After the appeal was perfected the appellee dismissed his complaint 1. below, and made a showing here that the complaint had been dismissed, and that the receiver filed a final report showing that the property which had been taken from the possession of the defendant had been delivered into the possession of the plaintiff. The appellee then filed a motion to dismiss this appeal upon the ground that the question presented was moot, which motion was overruled, and he has renewed it by way of what is termed an answer in abatement. The appellant has strenuously objected to the dismissal. The appellee had the benefit of the receiver so long as he desired it, and no reason is seen why the appeal should not be decided on its merits.
The verified complaint in one paragraph furnished all of the facts before the court. It alleges that the plaintiff and defendant were partners; that the defendant was in 2, 3. charge of the store, the property of the partnership. It appears from the record that the summons in the case and a copy of the order appointing the receiver were served upon the defendant on the day on which the complaint was filed. Not only does the complaint fail to allege facts which show cause for the appointment of a receiver without notice, but it does not allege that there is a necessity for the appointment without notice, and does not pray for the appointment of a receiver without notice. A receiver may not be appointed without notice unless it is made to affirmatively appear not only that there is cause for the appointment of a receiver, but that there is cause for such appointment without notice, and a sufficient reason for not giving reasonable notice must be shown. The facts must be made to appear, and not just the conclusion of the plaintiff. Tormohlen v. Tormohlen (1936), 210 Ind. 328, 1 N.E.2d 596.
The complaint and the facts shown fall far short of justifying the appointment of a receiver without notice.
Judgment reversed.
Roll, J., absent.