Opinion
Decided March 19, 1931.
Receivers — Appointment erroneous in action for money only, when — Section 11894, General Code.
It is prejudicial error for a common pleas court to appoint a receiver for the property of a defendant in an action at law, where the only relief sought is a money judgment and the plaintiff does not attempt to subject any right or interest of the defendant to its claim, and does not ask for any final relief concerning the property for which the receiver is sought.
ERROR: Court of Appeals for Summit county.
Messrs. Myers, Dinsmore Whittemore, for plaintiff in error.
Messrs. Sheck Stevens and Mr. N.M. Greenberger, for defendant in error.
The plaintiff in error prosecutes error in this court to a judgment entered in the common pleas court of Summit county, in which a receiver was appointed for certain property owned by him. Plaintiff in error claims that under the petition filed by the defendant in error, and the evidence offered in support thereof, said receiver was erroneously appointed.
The petition filed by the defendant in error states that it is a corporation duly organized and existing under the laws of the state of Ohio and that it is the successor to the Master Oil Company, a corporation organized for a similar purpose. It further states that on or about the 28th day of January, 1930, the Master Oil Company entered into an agreement in writing with the plaintiff in error, by the terms of which it underlet to him a service station located in the city of Akron, on the same terms and conditions as were contained in the lease wherein James T. Wellock was lessor and said Master Oil Company was lessee, all of which terms and conditions said plaintiff in error assumed and with which he agreed to comply.
The petition then sets forth four separate causes of action, in each of which the defendant in error pleads, under the short form, upon several accounts, copies of which are attached to the petition and made a part thereof and marked exhibits "A," "B," "C," and "D."
The defendant in error further alleges that the only asset said Sweesy has is the service station leased to him as hereinbefore referred to, and that the defendant in error is a creditor of said Sweesy and is attempting to subject the property of said service station to its claims, and that its right and interest in said property or the proceeds thereof are probable, and that, unless a receiver is immediately appointed for said property, said property is in danger of being lost, removed or materially injured.
The prayer of the petition is for a judgment for the aggregate amount of the four causes of action, that a receiver be appointed to take charge of said service station and the contents thereof during the pendency of the action, and for such other and further relief as is equitable and just.
Upon the hearing before the trial court upon the motion to appoint said receiver, certain statements of counsel were made, which the court received as evidence and upon which the receiver was appointed — all over the objection and exception of said plaintiff in error.
We have carefully read this petition and examined the law cited to us by the parties interested, and we are of the opinion that this action was one at law to recover a money judgment, and that the allegations of the petition hereinbefore quoted do not, as claimed by the defendant in error, bring the proceedings within that part of Section 11894 of the General Code which provides that a receiver may be appointed in a suit —
"1. * * * by a creditor to subject property or a fund to his claim, * * * on the application of the plaintiff, or of a party whose right to or interest in the property or fund, or the proceeds thereof, is probable, and when it is shown that the property or fund is in danger of being lost, removed or materially injured."
The appointment of a receiver is always ancillary to a principal proceeding, and under the foregoing quoted section, the suit itself must be one to subject property to the claim of the plaintiff, on his application, and where his right to or interest in the property or the proceeds thereof is probable.
There are no allegations in this petition by which the defendant in error attempts to subject the property of the plaintiff in error to any right or interest which the defendant in error had therein. The allegations of the petition make it strictly one at law, with a prayer for a money judgment. It is true that the petition recites facts which show how the different accounts arose, all being connected with the operation of the service station which is held by the plaintiff in error under a lease from the defendant in error, but the defendant in error does not attempt to subject the leased property and its contents to its claims and is not asking any principal relief in regard to it, and does not allege or ask that any specific interest therein be found in its favor and the property disposed of in accordance therewith, but only asks that said property be taken possession of by a receiver, to be held by him until it is determined in said action at law whether said plaintiff in error is indebted to said defendant in error as claimed by it.
If this proceeding can be maintained as claimed, then in any action at law to obtain a money judgment, a receiver may be appointed for any or all property of the defendant, whether involved in the litigation or not, and there would not be much use for the attachment proceedings now provided in the civil code.
As is said in 4 Pomeroy's Equity Jurisprudence, Section 1539, quoted with approval by Judge Washburn in the case of Guardian Financing Co. v. Davidson, 23 Ohio App. 143, at page 146, 154 N.E. 743, 744:
"Unless authorized by statute, there is no such thing as an action brought distinctly for the mere appointment of a receiver; to justify the appointment it is essential that some proper final relief in equity be asked for in the bill which will justify the court in proceeding with the case."
The petition of the defendant in error not asking for any final relief concerning the property for which the receiver was sought and appointed, we are of the opinion that the appointment of the receiver by the court of common pleas was erroneously done. The order of that court is therefore reversed and the receiver discharged; and the petition of the defendant in error not stating a cause of action justifying the appointment of a receiver, final judgment in this regard is rendered for the plaintiff in error.
Judgment for plaintiff in error.
WASHBURN and FUNK, JJ., concur.