The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1893-03-23

amended DefOre answer. But II Is said that be-
cause our statute provides for an application
and the appointment OF receivers by the Judge
In vacation. and because the case was so brought.
and the hearing had occupied seven days, and
all the evidence was in ON both sides, tie amend
ment should not have been allowed and that
such a proceeding ought not 70 be tolerated.
NO authority Is cited to sustain the proposition
that an outrage was committed upon the appel
liant; In fact. we are not told how and In what
manner the appellant was injured by the ruling
OF the court In allowing the amendment me
evidence was all III, and the amendment was
made TO conform the complaint to some OF the
proof. In what manner did 1t work any disad-
vantage to the appellant How was il placed In
any worse situation than itotherwise would have
been! Counsel have not told us in their brief.
and we confess We are at a loss 10 know wherein
they were injured.
The amendment was made TO CONFORM the
complaint to some of the proof. me evidence
Is not in the record. and this court will presume,
in the absence OF the evidence, that the amend
nent covered the evidence then before the court
and nothing more. A pleading may be amended.
of course. al any time before 1t is answered. Or.
s., 1881, Sec. 394D
Coming TO the refusal of the special
term to give time for preparation of argu-
ment. the appellees say that counsel for APP
argument which IN the light
OF the record is neither candid nor fair.
There can be no error In the refusal. the
appellees hold, unless the action of the
court below was all abuse of its discretion,
and that on account of such action the ap-
pellant was injured. Tie apDellees deny
that there was any haste or injury. They
say the appellants counsel informed the
court. after the appellees had stated a
willingness TO submit the case without
argument. that they. the appellants coun-
sci. did not know whether they de-
sired to argue the case and did
not Know who would argue it. and desired
until the morrow to consult and determine
they would do. The court. holding
it to the interest of bers of the order
to settle the point as soon as possible. con-
cluded to appoint q receiver. The brief
concludes as follows:
Can II be fairly said that the court below erred
In refusing to delay the case under this state of
facts, or that the appellant was not treated fair
ly In the matteri Ii is urged that the hearing OF
evidence had consumed some six or seven days,
not consecutive days. but scattered along from
the 18th to the 23d of the month, yet the appel
lants counsel were. not able to say whether they
wished TO argue the case or not, and they did not
say at any time that they would argue the case
upon the next day, If the case were adjourned
for that purpose.
We think we are warranted in saying 1t was
the duty OF the counsel TO have been ready TO
say whether they wished to argue the case when
the evidence closed. and IL the question whether
they would argue IL or not was so doubtful a one
that they could not determine 1t until the next
day. 1t is reasonable to suppose that they were
strongly OF the opinion that the appellees had
made out their case.
1t was also the duty of counsel to have been
ready to proceed with the argument. The case
had been pending since the Goth OF July. The
evidence had been heard, as we have said. dur
ing six or seven days between the 18th and 23d,
and the only excuse offered by counsel was that
they had been up until midnight the night before,
and had not eaten any lunch at the noon recess.
We submit that these excuses or reasons for
not being ready were not such as would warrant
any court In adjourning a case. Much less
are they facts on which to base an
was an abuse of judicial discretion. or
would warrant the charge that the action OF the
court was an "a ar hhi,nSr ~ abuse nuse, of power owe Es oI the
ion that the interest of all parties demanded that
1t should be determined with as little delay as
possible. and 1t was clearly the duty of the court
to act in such a manner as TO protect the rights
and interests of oil concerned.
We do not think that counsel for appellant feel
that there was any injury done the appellant by
the refusal of the court to adjourn the case. but
the attack made upon the court below is rompted
by their chagrln at the result OF the nearing
that a great outrage has been committed by the
court below. and they do so in a very undignified
manner. There is nothing in the record to war
rant or Justify the charges OF the language used.
The evidence Is not In the record. but We have
the statement of Judge Taylor Ct. p. 32, L. 25)
that the evidence Ia clear and disclosed such a
state OF facts that the court, in twenty-five years
practice and ten years upon the bench. had
never seen or heard the like In the mismanage-
ment of the affairs OF q corporation. In the
light of these disclosures in the management of
such a corporation as this. organized for. and
pretending to save and protect the small con-
tributions and savings of poor people. 1t does not
become counsel who are attempting TO defend
these "supremers' and retain for them the con-
troll of appellants assets. to talk Of "curbiDg
the antics of some of the judges OF the
lower courts" In their zeal counsel
seem to lose sight Of the issues
of the case. and argue it as if the appointment
OF a receiver by the court was. In effect, taking
the assets OF the appellant from its members and
appro priating them to its own use; whereas, the
whole proceeding is to wrest the assets from the
possession or those in control. who, counsel for
appellant say they are willing TO grant. ought TO
be In the penitentiary. And IL 10 seriously ar
gued that, no matter how unfaithful the officers
may have been nor how much they may have
plundered the organization. as they have been
selected TO fill these offices. there is no power In the
sets. and that the appointment of a receiver is,
in effect, robbing the members of what assets
are left.
Taking the allegations of the complaint, which
In the absence OF the evidence we are bound to
assume was fully sustained by the evidence, to-
gether with the statement OF Judge Taylor as TO
what was established by II, we submit it would
more strongly 10 a court OF equity TO step in and
protect the assets from the wrong doing OF those
In control.
Here was an organization of large member
ship. but the interest of each individual con para
lively small, a large amount of assets in control
practically of one man. or at most of three or
four, who have violated every duty owing to the
memberships: their actions and doings concealed
from the members those In control in the offices,
by clever management, have perpetuated them
selves In Office and postponed the time OF election
OF successors and have plundered the treasury
by retail and wholesale. Could a stronger case
be made for the appointment of a receiverl
newspaper clamor in this case. 1t only needs a
simple statement of the facts to demonstrate the
justice of the cause. We submit there is no error
in the record and the case should be affirmed.