The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-09-07

ferred on the Judges named as on the courts,
ANA although there is no express provision an
JhOrizng She discharge of receiver, either by
the court or a Judge, yet think the power to
Vacate the appointment is clearly implied in the
power to appoint" The differences in our con
stitution and statutes and those of Ohio have
been referred to, but aside from that the ruling
of our Supreme Court, as already alluded TO, Us
opposed to the above proposition-aud that
proposition seems to have been deduced from
High on Receivers. sec. S26, which is only sup
ported by cases decided in States where, 10y the
constitution aud laws the courts in equity are
always open or the judges are expressly author
lied TO do the particular act or acts in vaca 1on'
or the constitutional authority TO give the power
is conferred ana the courts, from what they re-
gard necessity and usage, sanction Its exercise.
l cannot regard this last case nor High on Re
ceivers as authority In this case supporting the
acEiOn of the judge in removing said Landers.
To do so would be to disregard the decisions OF
our Supreme Court and the natural and I'M
aYOidable deductions therefrOm. BY that rule
the power to grant an injunction would carry
with IL, incidents and by implication, all
other acts, powers and results accorded by the
uSages of courts of chancery, even to the ap-
pOntment of a receiver when asked, ETC., With
out express authority by statute. Ii would
carry with it the power of judge OF Circuit
Court to remove administrators In vacation, ana
many other powers beside not recognized as
proper under our system.
For the reasons suggested, cannot regard
the rule as stated in High on Receivers. section
S26 applicable and binding here, further sug-
gest that the cases referred TO by High, except
those of a character as Crawford va. Ross, are
cases decided on acts done In court III term
time, as case in % Gala, and others.
l have not entered into the asserted distinc-
tion between the grant of injunction and APP
pointment of receivers nor is it necessary to
say more than that there is, In many respects:
close analogy. (See High on Rec, section l5.)
My conclusion is that the order OF removal OF
Landers was unauthorized; that the judge had
no authority for such action,
regret this apparent difference between the
very able judge who made this order ana my
self. But it is admitted by counsel. and it is
dina 70 In fn hat hn nfTa
argued before him and only formally mentioned,
that the difference is more in appearance
than reality. And 1t Is a question that would
hardly suggest itself to the most careful in the
hurry of such matter in chambers, ana II
merely mentioned would, without careful ex-
animation beyond the usual textbook, seem to
be free from doubt, that Is, the power 10 remove
to exist as an incident etc.
Indeed, do not say what might be the holding
of the court OF last resort. l give my opinion,
formed on as careful examination and con-
sideration as the time allowed. The conclusion
| have come to seems to be the natural and
correct one, and being of that opinion it is my
duties TO so declare it.
THE MOTION FOR A REH HEARING.
When the decision of the court given,
Messrs. judah & Wilson, representing the de-
postOrs, filed motion for reheariDg, and
asked, if it was granted, that the court call in
the other judges for consultation. The matter
came up a: O'Clock, and discussed by A,
W. Hendricks and W. II. Il. Miller for the bank
partners, and John NJ. Judah and John r. Will
son for the depostors.
In giving his decision on this question. Judge
Taylor said: 81 fully realize the Importance of
this case and the weighty interests involved in
it. Ihave no personal feeling in the matter and
regret that the case has come before me in the
! form it has. This is not a question between
Mr.. Ritter and Mr.. Landers as to who shall be
receiver, and 1t is not necessary for me to state
| fltofi in
such question, my friendship for Mr.. Ritter
and high regard for his character would lead me
| to swerve in his favor. I am not acquainted
with Mr.. Landers, but have always been led to
regard him as an honorable and upright man,
such as l know Mr.. Ritter to be. But this mat
ter is a question of law, purely-whether or not
| judge has authority TO remove a receiver dur
ing vacation, This question was fully and ably
argued, and I have examined iT with
much care, L have como TO the cOncu-
| sion that judge cannot remove a receiver
during vacation. He then has no authority to
DO anything except what is expressly provided
| By law. The statute provides that under GER
| tain circumstances judge may appoint re-
| celVer for any trust, and this Judge Walker did
| Mr.. Landers was duly appointed, qualified and
| gave mis- bond. My conclusion is that that was
an end of The matter. Judge Walker had no au-
| thorlty TO remove him after he was appointed
! 1t is no pleasant matter for me to set aside the
order or ruling of a brother judge, but in this
case feel that am compelled to do so.
Regarding the matter of calling in the
| other judges for consultation. L VIII
say that nothing was said about
| that when the case first came up. Even if
should have consulted with them, and they had
| differed from me in this matter, l would have
| been compelled to have given the same decision
as the order of this court. l am satisfied that
| the decree was right, and that should stand by
| 1t. II might be set aside by some other tribunal
| but this does not figure in this matter. The
| question of competency of the receiver must
/ q
| here. Therefore shall not grant a motion for II
rehearing."
! Mr.. judah at once made a motion for a new
| trial, which was overruled, and exception taken
| to the general term.
OTHER MATTERS.
Pursuant to the order Of the court, Mr. Ritter
at once turned over the books, papers and assets
| of the bank to Mr. Landers. 1t is understood
that the latter does not desire to retain the re-
ownership and will resignit in a few days for
personal reasons. II is probable that if he
would raise the point of eligibility before Judge
Walker, as they did before Judge Taylor. While
Mr.. Landers is receiver, therefore, it is
probable that some other person Will supersede
him within short time, and who this person
Will be Is purely matter of speculation at
present.
THE COURT RECORD,