These two above entitled cases are combined for the purpose of this decision and opinion, since they involve the same question of law and substantially the same set of facts.
In both cases the petitioners ask for a writ of prohibition against the respondent court, directing it not to proceed further in the appointment of a receiver in two causes of action: one in the case of Paul T. Rochford v. Producers Realty Corp., No. 30537 and the other Paul T. Rochford v. Indianapolis Produce
It is shown to this court that prior to the beginning of the two cases (which came to the Hancock Circuit Court on change of venue from the Marion Circuit Court) that there had previously been commenced in Marion Superior Court No. 3 on July 17, 1956, Cause No. C-20623, a suit entitled Carl M. Geupel Construction Company v. Indianapolis Produce Terminal, Inc. and Producers Realty Corporation (the named relators in each of the cases now before us); that at the time of the filing of the suit in the Marion Superior Court No. 3 an application was also filed for the appointment of the receiver of both of the relator concerns; that said case (as a result of a change of venue) is now pending in the Shelby Circuit Court, being Cause Number 28895 on the issue for the appointment of a receiver of each of the relator concerns.
The relators, claiming there is a conflict of jurisdiction, filed pleas in abatement with the Hancock Circuit Court where the two cases filed by Paul T. Rochford above referred to are pending and in each of which cases a receiver is also requested. The Hancock Circuit Court sustained a demurrer to each of the pleas in abatement.
The Rochford cases were each filed subsequently, namely, upon December 30, 1960. It is contended that the Shelby Circuit Court, the first court in point of time assuming jurisdiction of the subject-matter, has jurisdiction to the exclusion of the Hancock Circuit Court and all other coordinate and equal courts. This is the general principle under
In Coleman v. Callon (1916), 184 Ind. 204, 206, 110 N.E. 979, we stated:
It appears to us rather decisively that the jurisdiction of the matter before us is with the Shelby
The respondent claims that there is no conflict of jurisdiction unless (1) the issues triable are the same; (2) the parties in each cause are the same.
It is true the party plaintiffs are not the same in the case in the Shelby Circuit Court as in the two cases in the Hancock Circuit Court, but they both seek to seize the same property of the same defendants, and this property is the subject-matter of all the actions. A receivership proceeding concerns itself with certain specific property. It is partially an action in rem, as well as an action in personam. If two courts attempt to seize the same property, it naturally results in a conflict of jurisdiction. There are cases, therefore, although the parties may differ, where the subject matter or res is the same, which results in an unseemly conflict of jurisdiction where two courts attempt to assume control over the same property.
In 14 Am. Jur., Courts, § 245, p. 438 it is said:
Clark on Receivers says in this respect:
This authority further states:
It is interesting to note that in most, if not all cases cited and referred to in this state bearing upon the point involved, we find that the party plaintiffs in the trial court happen to be different persons in each of the cases in which it was claimed a conflict of jurisdiction existed for the appointment of a receiver of the property of the same defendant.
The respondents cite the case of State ex rel. Rader v. Lake C.C., Kaul, J., etc. (1957), 237 Ind. 273, 145 N.E.2d 15. An examination of that case shows there was involved purely an action in personam between parties for an injunction with reference to the obstruction of certain drains. We found no class action
The respondents contend that a friendly creditor could institute an action for a receivership and never go forward in the action for the final appointment, and thus thwart the opportunity of other creditors and stockholders from asking for a receivership. We point out, however, the answer to such hypothetical is that a creditor or stockholder is not foreclosed from intervening into any pending suit for a receivership of certain property and thus prosecute the action to its final termination promptly when it is shown the action is fraudulently brought or is not in good faith. Burns' § 2-222, 1946 Repl.; Marcovich v. O'Brien, Auditor (1916), 63 Ind.App. 101, 114 N.E. 100; Town of Woodruff Place v. Gorman (1912), 179 Ind. 1, 100 N.E. 296.
The temporary writ of prohibition heretofore issued in each of the above entitled cases is now made permanent.
Achor, C.J., and Jackson, Bobbitt and Landis, JJ., concur.
NOTE. — Reported in 182 N.E.2d 589.