(DOWNLOAD) "State Ex Rel. Montgomery Et Al. V." by 689 Supreme Court of Indiana No. 29 # eBook PDF Kindle ePub Free
eBook details
- Title: State Ex Rel. Montgomery Et Al. V.
- Author : 689 Supreme Court of Indiana No. 29
- Release Date : January 04, 1958
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 58 KB
Description
This action involves a writ of prohibition. The facts are as follows: Relators Montgomery and Montgomery are the owners of
an ice cream and drive-in eating establishment known as the M & L Ice Cream Manufacturing Company. This they leased to
Richard H. Hansing and Wyota Hansing, his wife. A suit for possession, based upon the lease, was filed by the owners against
the lessees in the Marion Circuit Court on June 5, 1958. Thereafter on June 10, Margaret Hansing, mother of Richard Hansing,
filed an action in respondent superior Court, asking that a temporary restraining order issue restraining the defendants Montgomery
and Montgomery from taking any further action in the suit for possession pending in the Circuit Court of Marion County, and
that a receiver for said real estate and personal property be appointed, all without notice. In support of this action she
alleged that Richard and Wyota Hansing, as partners, were indebted to her in the sum of $2,000 on a promissory note which
was past due. She further alleged that, unless so restrained, the Montgomerys would post bond in the action filed by them
in the Circuit Court and take possession of the property and that, in event of such seizure of the premises, the entire shifting
stock of inventory, most of which she alleged to be perishable, would be lost to her irreparable damage. The respondent thereupon
issued an order restraining relators "from taking any further action in Cause No. 79428 in the Circuit Court," and appointed
a receiver to take charge of the property, all without notice, Relators here assert that the respondent was without jurisdiction
to appoint a receiver without notice for the reason, among others, that the Circuit Court and the Superior Court, Room 3,
are courts of concurrent jurisdiction; that upon the face of the complaint the sole purpose for the subsequent action in the
Superior Court was to prevent the defendants from lawfully proceeding with their action for the possession of property, which
action had previously been filed in the Circuit Court, and that the possession of said property was the primary subject of
the controversy in both cases. Upon the basis of the above stated facts, this court issued a temporary writ prohibiting respondents from taking any further
action in the cause. The general and long established rule upon this subject has been stated as follows: