The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-09-07
LANDERS THE RECEIVER.
Judge Taylor Holds Court Cannot
Remove a Receiver in Vacation.
A Carefully Prepared Ruling on Legal
Point Never Before Directly De
cided-Subsequent Proceedings.

ruled that the removal of John Landers and the
subsequent appointment of Levi Ritter were IL
legal, because judge has no authority to re-
move a receiver during vacation. direct de-
esion on this point had never before been given
and as Judge Taylor's finding was carefully pre-
pared and full of interest, especially to lawyers
the points covered are given in full, as follows
JUDGE TAYLoR's DECISION.
In the vacation of this court Aug. 10. 1888,
John Landers was appointed by the judge re-
ceiver in this case of the Indiana Banking Com
pany, and he qualified as such receiver, accord
ing TO the direction of thu judge. On the 18TH
day of August. and in the vacation of the court.
certain creditors of said Banking Company pre-
scented a petition to the judge to remove SAID
Landers from his trust as such recelver and 70
appoint another person as receiver. On the I'D
day of August, 1888, and in the vacation of the
court, the judge on said petition made an order
removing sad Ladders from said trust and APP
poiated Levi Ritter receiver in his place. The
entry reeites that counsel for plaintiffs declined
TO take exception, and said nothing wasleft 10
do but TO name a successor; that Landers de-
clined to make any further contest,
and asked the judge for time to
consider the selection of his successor
which was granted. The conrt thereupon di-
rects said Ritter to execute his bond" etc. At
the conclusion Of the order and entry is the fol-
lowing: after the appointment OF said Ritter,
and two days after the ruling of the judge in re-
moving said Landers, the attorneys for the plain
TIFF come, ana except TO the ruling or the Judge
heretofore, made action in said removal OF
said Landers, and move the Judge TO vaeate said
order on the ground that the court had no Jurls-
dcton to remove said Lauders in vacation.
which motion is now overruled," etc, land said
Landers IS ordered to report 10 the court or
Judge thereof of his doings," etc.
The petition presented by the plaintiff, Mary
Morrison, questions the validity of the action of
the judge in removing SAID Landers af:er his APP
pointment and qualification, and the
appointment of said Ritter in his
stead, and asks the Judgment OF the
court thereon. The question presented is
one purely legal not involving, IN any sense, the
fitness of either of the said persons for the trust.
Had the Judge power after the appointment and
qualification of said Landers, to remove him from
the trust, in vacationl BY the constitution of
this State the judicial power of the State is vested
in certain courts named, and in such other courts
as the General Assembly may establish. (ATt.
sec. /. Schoulty VS.. McPheeters, 70, Ind 3730
There is no provision In the constitution that
vests judicial poweriu judge. CoDstitutionally
speaking judge, apart from the court, IN the
vacation. is simple citizen, except in the single
instances: he Is copservator OF the peace.
tart. z, sec 15.) But by virtue of the statute the
Judge had the power to appoint said Landers re-
'celver In the vacation of the court. tR. s. 1881,
sac, 1,222.) In the absence of this statute no
such power could be exercised by a judge. New
man VS.. Hammond, 46 Ind, 1191 1t is useless to
inquire WI ether such statute is an invasion OF
the constitution or not By usage and sanction
1t is the rule-teo long acquiesced in to be now
disturbed, But the case just cited states
in positive terms that judge
In vacation cannot do an act which the law au-
Shorizes to be done or contemplates Its being
done by the court, unless the power to do so is
expressly conferred upon him by law. Then
IL seems TO follow as necessary sequence that
when the judge in the vacation acts in
matter not expressly authorized by law, the act
Is cOram non judice and void. CDaylor VS.. Moi
datt Baekfd, 119)
In England and in the courts OF some of the
States where courts of chancery are distinct
from The common law courts, they are always
open for the exercise of any necessary part of
their Jurisdiction, while In others, as the United
States courts, where the same court has both
Jurisdictions, there are special rules or pro-
visions of "A constitutional or statutory kind,
OF both.
STayt1r VS.. Motfait.2 Blackt'd, 306)
For examples: Sec. II, CHAP 179. p. 678. Vir-
glnia code; THE judge OF a Circuit Court in
which case is pending wherein an injunction
is awarded, may. III vacation, dissolve such in
junction after reasonable notice to the adverse
party" Penn VS.. Whitehead, / 2 Graft, 79.)
Sec S043, Georgia statutes: Courts of equity
shall have authority to appoint receivers to take
possession oil ana protect trust or JOINT property
and funds, whenever the danger of destruction
aud loss shall require such Interference"
And sec. 4,163: "a court OF equity is always
open, and hence the judge, in vacation and at
chambers, may receive and act upon such petit
tions, always transmitting the entire proceed
Jugs TO the clerk, to be entered in the minutes or
Othe' records of the court"
Such has always been the practice
in this State. Crawford Ross, IL Ga, Al;
sec l8, art. A, of the const. of OhiOJ The sew
erdlJudges of the Supreme Court, of the Com
mon Pleas, and of such other courts as may be
created shall, respectively, have and exercise
such power and jurisdiction at chambers as may
be directed by law"
And in p, F. W. & G. Railway Company VS.
" Irst az Ohio ST. Rep, 144) the question was
made, could the General Assembly, under that
cons'i utiOnal provision. confer on judge of
the Supreme Court Jurisdiction at chambers TO
graHt0r dissolve an injunction In cause pend
ing ~ another courC; and the Supreme Court
held that the power could not be conferred.
AsalFeady animated our courts only open
at stated periods Our constitution and stat
utes contain no such liberal provisions as the
examples above referred to. (See Taylor VS..
MOffatt, supra.)
"As general rule, a grant of power to
court, or a Judge TO award process includes a
At Inv
punlshing dsObedience Hence a court of
chsneery exercises a general authority TO issue
tents, punish cOlltempJs of its process;
and there is no doubt bus that our Circuit Courts
possess this power; but they can exercise it in
term time only,
"But when he has completed an order for an
Injunction, and las closed his sittings, his power
over the subject must be at an end. The case
has passed from him into the Circuit Court, and
obedience to the writ o; injunction is to be en-
forced IN the same way as if it had been awarded
by the1lreuit Court lie has no time nor place
given Eifn by the law, when where he can
iudcIai!y take any further notice OF the sub
ect until the next term of the Circuit Court"
Taylor VS.. MOtfatt supraD
The Judge is expressly authorized to grant an
iDjun.lOn In vacation, and this is the limit of his
power, except as further expressed. He cannot
dissolve IT, He cannot enforce his order by at
tachment. The court can; but the judge can
only canse an arrest and take bond for appear
snc' The ensuing term of court, and this only
,-.,sen of q statute
Jerk of the Circuit Court may appoint an
aG'a -istrator IN vacation, but neither he nor
age, after appointment aud qualification
administrator, can remove him Vaca-
IL" u must be done, II at all, in term time.
grt must do il. Such judge may, by ex-
press tatute, remove guardian in vacation
but without such express authority he could not
no IL SO the judge of Circuit Superior
Court may, in vacation, appoint receiver; and
the cases in which he can do so are specified
but there is no express authority given the judge
10 rainoVe such receiver In vacation after his APP
continent and qualification
Is the power to remove implied in the power
10 ar .'3int3
Harr WA rnatyy ruIa in, ne
The power must he expressed.
But can the power of removal be any more
implied from the power 10 appoint than could
yhe power to enforce order of Injunction by
attachment. etc; Or he power to remove an ad-
ministrator from the power to appoint hml
The general authority possessed by court OF
rhancery seems to hlNt heen giYen by a