Wayne Pike Co. v. State ex rel. Whitaker

Coffey, J. This was an action brought by the appellee, in the Jay Circuit Court, against the appellants, to obtain a judgment and decree forfeiting the franchises and property of the appellant, the Wayne Pike Company, a corporation duly organized under the laws of the State for the purpose of constructing a toll road. It appears from the complaint that at the time of the [673] commencement of the action, the property of the corporation was in the hands of the appellant Fleming, as a duly appointed and qualified receiver. The action was brought without leave of the court. Filed June 6, 1893. The court overruled a demurrer to the complaint. In overruling a demurrer to the complaint the court, in our opinion, committed an error. It seems to be settled that a receiver, as a general rule, can neither sue nor be sued, without leave of the court making the appointment is first obtained. High on Receivers, section 254; Barton v. Barbour, 104 U. S. 126; Keen v. Breckenridge, Receiver, 96 Ind. 69; Garver v. Kent, Receiver, 70 Ind. 428; Moriarty v. Kent, Receiver, 71 Ind. 601; Herron, Receiver, v. Vance, 17 Ind. 595; Elkhart Car Works Co. v. Ellis, 113 Ind. 215; Davis v. Ladoga Creamery Co., 128 Ind. 222. There are other questions presented by the record and discussed by the appellants, but as we are not favored with a brief on behalf of the appellee, and as the action can not be maintained without first obtaining leave of the court to sue its receiver, we deem it unnecessary to examine’them. Judgment reversed, with directions to the circuit court to sustain the demurrers to the complaint in this cause.