Opinion
No. 30,096.
Filed February 1, 1962.
MANDAMUS AND PROHIBITION — Appointment of Receiver — Prima Facie Error — No Brief by Respondent. — Where the relator corporation makes a prima facie showing of improper appointment of receiver, to which the respondent makes no opposition, a writ of prohibition will issue.
An original action by State of Indiana on relation of Tipton Loan Corporation and others, relators, seeking a writ of prohibition and mandate against respondent, Oliver D. Wheatley, Judge of Tipton Circuit Court. A temporary writ was issued.
Temporary writ made permanent.
Milton E. Craig, of Indianapolis, for relator.
This is an original action asking for a writ of prohibition and mandate as a result of the judge of the Tipton Circuit Court appointing a receiver of the relator corporation without notice. A temporary writ was issued by this court. The petitioners, among other things, allege that the appointment of the receiver was made without notice; that the judge appointed his brother as such receiver; that no showing was made of any emergency existing for such appointment; and that there was no showing that the corporation was insolvent. Before the temporary writ herein was issued, the judge ordered the sheriff to seize the books and papers of the relator corporation. The writ was thereafter amended to mandate the restoration of the property to the relator corporation. The petitioners further claim that there is no showing that an injunction or restraining order would not have sufficed to protect the interests of the parties in the pending action.
The respondent has failed to file any response or brief in opposition to this original action. The relator has made a prima facie showing. State ex rel. Wolfal etc. v. Rush C.C. et al. (1955), 234 Ind. 650, 130 N.E.2d 460; Gibson et al. v. City of Indianapolis (1962), 242 Ind. 447, 179 N.E.2d 291.
There being no opposition thereto, the temporary writ herein is made permanent.
Jackson, J., not participating.
NOTE. — Reported in 179 N.E.2d 726.