Glines v. Supreme Setting Order of Iron Hall. it to distinguish a person who should be invested with general power, involving the exercise of judgment and discretion, from an ordinary agent or employé who acted in an inferior capacity, and under the direction and control of superior authority, both in regard to the extent of the work and the manner of executing the same. That service, to be rendered effectual, . . . must be made upon one of the officers specified therein, or upon a person whose powers and duties correspond to the term 'managing agent,' as we have endeavored to define it." In answer to the motion to vacate the order appointing the receiver, as the papers upon which the order was made did not show service upon the defendant, it was sought to cure this defect by supplemental affidavits,— although it is doubtful if any such papers were proper,showing that Cooper was either a managing agent or a director of the defendant, and therein facts were presented from which the court was asked to so conclude. In addition, it was made to appear that since the order appointing the receiver was made, and after the granting of the order to show cause to vacate the order appointing the receiver, the defendant appeared in the action and answered. What effect the subsequent appearance and the putting in of an answer by the defendant would have upon the validity of the service, for the purpose of obtaining jurisdiction over the person of the defendant, it is unnecessary to discuss, in view of the conclusion at which I have arrived as to the validity of the order. No question is presented on this motion as to the necessity for the appointment of a temporary receiver, and the facts upon which the plaintiff moved, showing the necessity for the immediate appointment of a temporary receiver, are not placed in dispute. It is practically conceded to have been a case eminently proper for the immediate appointment of a temporary receiver, to the end that funds in this state might not be removed therefrom by persons who had Glines. Supreme Setting Order of Iron Hall. been shown to have squandered the funds of the order received from branches in this state. In such fund the members of the order here claim to have title and interest, and the action was brought after the appointment of a receiver in Indianapolis, to prevent the funds here being taken away, to the injury and detriment of members residents of our own state. If, under such circumstances, the power to appoint a receiver was dependent upon the court having obtained jurisdiction over the person of the defendant, which is the ground upon which the moving parties solely rely to obtain a vacation of the order appointing a receiver, then I should be inclined to think that, the service upon the person being defective, the order itself could not be upheld. Upon reading, however, the section of the Code, and having in mind the jurisdiction exercised by the supreme court, it is clear that the right and power of the court to appoint a receiver in the first instance, ex parte and without notice, are abundant. Such right is not dependent upon the court having acquired jurisdiction over the person of the defendant; it being sufficient that, having jurisdiction over the subject-matter, the facts presented show the necessity for the exercise of the court's undoubted power. Such power should be cautiously exercised, and therefore the general rule is to give notice to the defendant of such applications. The validity, however, of an order appointing a receiver is not dependent upon notice to, or upon the court's obtaining jurisdiction over, the person of the defendant. In People v. Railroad Co. (7 Abb. Pr. [N. S.] 290) it is said: "In Verplanck v. Insurance Co. (2 Paige, 450), Chancellor WALWORTH states the rule as follows: 'By the settled practice of this court in ordinary suits, a receiver cannot be appointed ex parte before the defendant has had an opportunity to be heard in relation to his rights, except in those cases where he is out of the jurisdiction of the court, and cannot be found, or where, for Glines. Supreme Setting Order of Iron Hall. some other reason, it becomes absolutely necessary for the court to interfere before there is time to give notice to the opposite party to prevent the destruction or loss of property.' The same rule is reasserted by the chancellor in Sandford v. Sinclair (8 Paige, 374) and in Gibson v. Martin (Id. 481), and is asserted in numerous cases, among which are Field v. Ripley (20 How. Pr. 26), McCarthy v. Peake (9 Abb. Pr. 166), and Dowling v. Hudson (14 Beav. 423). In the case of Verplanck v. Insurance Co. (supra), the chancellor also said that 'in every case where the court is asked to deprive the defendant of the possession of his property without a hearing, or an opportunity to oppose the application, the particular facts and circumstances which render such a summary proceeding proper should be set forth in the bill or petition on which application is founded.'". Upon the papers, I think such a case was here presented, it having been shown that there was danger of the assets being removed, and the exigency demanding the immediate appointment of a temporary receiver, with a view to hold the property and preserve it for residents here claiming title thereto. No suggestion is made in regard to the fitness or unfitness of the person selected as receiver, nor as to the amount of security given by him. He was appointed on his own application, and without the court having any facts before it showing that his appointment was not in all respects proper. If any reasons exist why he should not be retained in that position, or upon its being shown that the assets are largely in excess of what was represented upon the original motion, thus demanding that additional security should he given by the receiver, these can only be considered when presented upon proper motions. This motion to vacate the order is based exclusively upon the ground that, the court not having jurisdiction of the person of the defendant, the order appointing the receiver was a nullity; and, having reached the conclusion that this view is not correct, the motion, for that reason alone, must be denied. INDEX ABATEMENT AND REVIVAL-Security for costs may be required - ..... .... 161 Right to revive suit in equity after death of sole defendant ..... Action for personal injury caused by negligence of servants 161 402 402 .407 note The rule at common law and under the statute stated....... AMENDMENT-What defects in mandate may be cured by amend- ment....... See PLEADING. 149 126 ... 105 APPEAL-Answers to questions contained in commission which Order of surrogate directing issuance of commission will be ....... 247 1 209 105 Absence of findings when prevents review on appeal ....... 143 157 |