Pressley v. Lamb

4 N.E. 682, 105 Ind. 171, 1886 Ind. LEXIS 428

• Court: Indiana Supreme Court
• Decided: January 29, 1886
• Docket: No. 12,627
• Status: Published

Opinions

Howk, J. —

This cause is now here for the second time. The opinion and decision of the court, when the case was first here, are reported under the title of Pressley v. Harrison, 102 Ind. 14. After the cause was remanded, in obedience to the mandate of this court, the superior court at special term overruled the defendants’ demurrers to appellant’s complaint theretofore filed. Thereafter the appellant, Pressley, filed a second paragraph of complaint. To the entire complaint the appellee, Lamb, separately answered in two paragraphs; but the first paragraph, being the general denial, was subsequently withdrawn. Appellant demurred to the second paragraph of appellee’s answer, upon the ground that it did not state facts sufficient to constitute a defence' to his, appellant’s, action. This demurrer was overruled by the court at special term, and appellant at the time excepted, and failing and refusing to reply or plead further, the court adjudged that he take nothing by his suit, and that appellee, Lamb, recover his costs herein. Upon appeal this judgment of the court at special term was affirmed by the general term, and from the judgment of the general term appellant, Pressley, now here prosecutes this appeal.

By a proper assignment of error here he has brought before this court the errors assigned by him in general term. By these errors he calls in question the sufficiency of the facts stated in the second paragraph of appellee’s answer to constitute a defence to his, appellant’s, action, and the decision of the court at special term in overruling his demurrer to such second paragraph of answer.

It does not appear from the record before us, that appellant’s original complaint, or what may now be called the first paragraph of his complaint, has been amended or materially changed since this cause was here before. The important facts stated in such original complaint are given in the opinion of the court in Pressley v. Harrison, supra, and need not be repeated here.

In the second paragraph of his complaint the appellant has fully and accurately stated his cause of action, and, before considering the errors of which he complains, it is proper, we think, that we should give the substance of such second paragraph. Appellant alleged in such second paragraph of complaint, that on the 25th day of August, 1884, he recovered a judgment in the Marion Circuit Court, of this State, against the defendants, Alfred and John C. S. Harrison, for $9,929.02, and costs taxed at-dollars, and thereafter, on the same day, caused an execution to be issued on such judgment to the sheriff of Marion county, which execution was then in the hands of such sheriff, wholly unsatisfied ; that at the time such judgment was so rendered and such execution issued, and theretofore, on July 18th, 1884, such, judgment defendants were the owners of a large amount of personal property, in excess of the amount exempt from execution, consisting of money, office and bank furniture, fire and burglar-proof safes, farming utensils and machinery, hay and other agricultural products, bills, notes, accounts and other choses in action and credits, and other personal property, the character of which was unknown to appellant, ■and also of a number of lots and parcels of real estate, particularly described, in Marion county, Indiana; that the defendants, Alfred and John C. S. Harrison, on and before the 18th day of July, 1885, were partners in the banking business, under the firm name of “A. & J. C. S. Harrison,” and, in that character, had contracted and owed the debt to appellant, for which such judgment was recovered, and were the owners of all the property, real and personal, thereinbefore described, the same being partnership assets, except the parcel of real estate, No. 24, the individual property of defendant Alfred Harrison, and except also parcels numbered 25 and 26, which were the individual property of defendant John C. S. Harrison.

Appellant further alleged that on the 18th day of July, 1884, defendants Alfred and John C. S. Harrison suspended payment in their said banking business, and became and were insolvent, as such partners and as individuals ; and being so insolvent, but there being no controversy as between themselves, they agreed between themselves to place all their partnership assets and property, and all their individual property and assets subject to execution, in the hands of a receiver to be appointed by one of the judges of the superior court of Marion county, wherein they both resided, to be administered by such superior court by and through such receiver, and distributed to their creditors under the orders of such court, and thereby to prevent any of their creditors from taking any of such property on execution for the satisfaction of their debts; and to that end they further agreed that a proceeding, in the form of an ordinary civil action, should be forthwith commenced in such superior court, to which Alfred Harrison should be made an ostensible plaintiff, and John C. S. Harrison an ostensible defendant, and which proceeding, while adversary in form, should in fact be of a friendly and agreed character, and should be prosecuted without any opposition thereto being made by the ostensible defendant, John C. S. Harrison, but, on the contrary, with his active assistance, so that, without any delay, the appointment of a receiver should be procured, in whose hands all the property, partnership and individual, of Alfred and John C. S. Harrison should be placed, and thereby their creditors prevented from taking the same in execution for the satisfaction of their debts.

And appellant averred that in execution of such agreement, defendant John C. S. Harrison personally employed attorneys to commence such proceeding in the name of Alfred Harrison as plaintiff, and against himself as defendant, and such attorneys thereupon, under the instructions and directions of John C. S. Harrison, and in the absence of Alfred Harrison, prepared and filed in the office of the clerk of the Marion Superior Court, on the 18th day of July, 1884, a complaint against John C. S. Harrison, as defendant, in the name of Alfred Harrison, as plaintiff, as follows :

“ The plaintiff complains of the defendant and says, that plaintiff” and defendant are partners doing business as bankers, at Indianapolis, Indiana, under the firm name of ’A. & J. C. S. Harrison/ and have been, as such partners, doing such business for twenty years last past; that ‘ a run ’ has been going on, by their depositors, against their said bank for several days last past, whereby their cash resources have been so much reduced that they are unable longer to continue said banking business, and said firm is therefore insolvent; that, in order to prevent a multiplicity of suits and thereby cause great expense in litigation, and in order to save said estate for their creditors, it is important that a receiver be now appointed for said firm to take possession and control of the assets of such firm, and administer the same under the order of the court; that a dissolution of such partnership be had, and an accounting between the partners. Wherefore,” etc.

This complaint was signed by the attorneys of the plaintiff therein; and such attorneys, appellant alleged, at the same time and by the procurement of John C. S. Harrison, in further execution of the agreement between him and Alfred Harrison, prepared the answer to such complaint of John C. S. Harrison, signed by him in person, wherein he, “ the defendant in this cause, admits the allegations of the complaint herein to be true;” that such answer was filed by John C. S. Harrison in the clerk’s office of such superior court, at the time the complaint of Alfred Harrison was filed as aforesaid; and when such complaint and answer were so filed, and at all times thereafter until the first Monday of September, 1884, the superior court of Marion county was in vacation; that no summons or other process, or publication, was ever issued or made on such complaint of Alfred Harrison, or served on John C. S. Harrison, nor did he ever endorse on any summons, or other process, an acknowledgment of service in such pretended action; that immediately upon such complaint and answer being so filed, on. the 18th day of July, 1884, they were, in further execution of such agreement, presented by the attorneys by whom they had been prepared, and by John C. S. Harrison in person (Alfred Harrison not being personally present, nor represented otherwise than as he was represented by the attorneys, who prepared such complaint and answer by the procurement of John C. S. Harrison), to the Honorable Lewis C. Walker, one of the judges of such superior court, who thereupon made an order placing all the partnership assets of Alfred and John C. S. Harrison in the custody of the sheriff of Marion county, and continued the appointment of a receiver, under advisement, until the next day, the 19th day of July, 1884, on which day, in further execution of their aforesaid agreement, there was filed in the clerk’s office of such superior court, and presented to Judge Walker of such court, in vacation, a supplemental complaint in the name of Alfred Harrison as plaintiff, against John C. S. Harrison as defendant, prepared by the aforesaid attorneys by the procurement of John C. S. Harrison, wherein Alfred Harrison alleged that the partnership assets of A. & J. C. S. Harrison were not sufficient to pay the liabilities of such firm; that he was the individual owner of property, real and personal, which he then surrendered, saving only the amount lawfully exempt from execution, and asked the court to take possession thereof by its receiver and apply the same to the payment of the debts of such partnership, and that he was informed and believed that John C. S. Harrison was willing to surrender his individual property for the payment of the debts of such partnership, and he asked that the court direct such receiver to take possession of the individual property of John C. S. Harrison, for the payment of the debts of such partnership, and that such “ supplement and amendment be taken and treated as part of his original complaint filed herein; ” and, on the day last named, John C. S. Harrison in person presented to Judge Lewis C. Walker his answer to such supplement and amendment, in which answer he admitted the allegations of the supplemental complaint of Alfred Harrison, and consented to the surrender of all his individual property, in the manner and for the purposes mentioned in such complaint.

And the appellant averred that no summons or other process or publication was ever issued or made on such pretended supplemental complaint, nor served on John C. S. Harrison, nor was service thereof acknowledged by him, but, after such papers were filed in the clerk’s office as aforesaid, they were presented to Judge Lewis C. Walker by such attorneys and by John O. S. Harrison in person (Alfred Harrison not being present in person, nor represented otherwise than as the aforesaid attorneys, who prepared such papers by the procurement of John C. S. Harrison, assumed to represent him), and thereupon Judge Walker on such day, in vacation, without any other or different proceedings or action being had or taken in such matter, than as thereinbefore stated, and acting solely upon such pretended complaint and supplemental complaint and answers thereto, and upon the personal consent and agreement of John C. S. Harrison thereto, and at his instance and procurement, as well as that of Alfred Harrison, as thereinbefore shown, made an order appointing appellee, Robert H. Lamb, receiver of all the assets, partnership and individual, of Alfred and John C. S. Harrison, and directed that, upon his executing bond and taking oath as such receiver, he should immediately take into his exclusive possession and control, and hold and dispose of, under the orders of the court to be thereafter made, all of said partnership and individual property; that appellee Lamb thereupon gave bond and took the oath required of him by such order, to the approval of such judge, and at once, as such receiver, took possession of all the partnership and individual assets of Alfred and John C. S. Harrison, and had since retained possession thereof as such receiver, and claimed that, his possession was rightful, and that he was entitled to hold and dispose of such property in such manner as the court should direct, in proceedings to be had in such pretended action; and that appellee Lamb, as such receiver, asserted further that the appellant had not, by virtue of his aforesaid judgment and execution against the defendants, Alfred and' John C. S. Harrison, acquired any lien upon any of such property so owned by the Harrisons and then in the possession of such receiver, or any right to enforce his judgment by levy upon and sale of any of such property on execution.

Appellant further averred that, on the 19th day of July, 1884, the defendants Alfred and John C. S. Harrison, each for himself as an individual, executed a deed of assignment of all his individual real and personal property to appellee Lamb, under the voluntary assignment law of this State for the benefit of creditors, and such deed was, on the same day, recorded in the recorder’s office of Marion county; that appellee Lamb held possession of such property by no other or different authority or right than thereinbefore stated; that Alfred and John C. S. Harrison had not, nor had either of them, any property out of which appellant could procure satisfaction of his judgment, or any part thereof, other than such as was then in the possession of appellee Lamb; and that, by reason thereof, appellant was without remedy for the-collection of his judgment, unless the court would decree-that the appointment of appellee Lamb as receiver, so made in vacation and by the consent and agreement of defendants,. Alfred and John C. S. Harrison, was without jurisdiction, and fraudulent and void, and vested in appellee Lamb no right to the possession of such property, or any part thereof, as against appellant’s judgment and execution, and his rights-thereunder. Wherefore, etc.

We have given a fuller summary of the facts alleged in the second paragraph of the appellant’s complaint than we otherwise would have done, for the purpose of demonstrating that the case stated therein, although manifestly relating to and founded upon the same facts and circumstances as the first paragraph, is not the same case which was presented to and considered by this court on the former appeal in Pressley v. Harrison, supra. So wide and so material is the difference between these two paragraphs of appellant’s complaint, as it seems to us, that if issue were joined on either one of such paragraphs, and such issue heard by the chancellor upon the facts stated in the other paragraph as the only evidence in the cause, there could be neither finding nor decree in appellant’s favor upon such issue. We have said thus much upon this point, for the purpose of showing that as the case is now presented here, upon the second paragraph of appellant’s complaint and appellee’s answer, the opinion of this court on the former appeal can not be regarded, in any proper sense, as the “law of the case.” Dodge v. Gaylord, 53 Ind. 365; Kress v. State, ex rel., 65 Ind. 106 ; Board, etc., v. Indianapolis, etc., R. W. Co., 89 Ind. 101; Rinard v. West, 92 Ind. 359 ; Davis v. Krug, 95 Ind. 1.

The substance of the first paragraph of appellant’s complaint is given in our opinion on the former appeal (102 Ind. 14), and, as we have heretofore said, need not be repeated. We may say, however, that the fundamental and controlling question in the minds of the court, presented in and by such paragraph, then the only complaint, and decided by this court, is wholly eliminated and withdrawn from the second paragraph of complaint now under consideration. The question thus presented and decided is stated in the syllabus of our opinion on the former appeal as follows: “ The filing and delivery to the judge by the plaintiff of papers purporting to be signed by the defendant can not constitute an appearance by the defendant to the action or to the plaintiff’s motion for a receiver.” That is, briefly stated, the plaintiff in a suit can not appear for the defendant therein, and by filing and delivering to the judge what purports to be, or is in fact, the defendant’s answer, give the judge jurisdiction of the person of the defendant. This question, as we have said, is eliminated and withdrawn from appellant’s case, as the same is stated in the second paragraph of his complaint. Not only so, but, in such second paragraph, appellant alleged the facts to be that in the suit of Alfred Harrison against John C. S. Harrison, instituted in the Marion Superior Court, wherein the plaintiff made application to Judge Lewis C. Walker, one of the judges of such court, in vacation, for the appointment of a receiver, he appeared and was represented by reputable practicing attorneys of that court and of this court, and that the defendant, John C. S. Harrison, made full appearance in propria persona, as he had the right to do, in and to such suit and application. True, appellant has alleged in the second paragraph of complaint that the defendant employed attorneys for the plaintiff in such suit and application; but it is clear, we think, that the authority of the attorneys who appeared for the plaintiff, no matter by whom or how employed, can not be called in question in this collateral suit. Indeed, the authority and right of such attorneys to appear for the plaintiff, in such suit or application, as it seems to us, could not have been directly questioned therein, except, as provided in section 970, R. S. 1881. This not having been done, the authority of such attorneys to appear for such plaintiff must be presumed, and can not be controverted in any collateral suit or proceeding, either below or in this court. Indiana, etc., R. W. Co. v. Maddy, 103 Ind. 200.

We have given the substance of the second paragraph of appellant’s complaint for another reason. So far as the naked facts of this case are concerned, without any coloring or qualification on either side by adjectives or epithets, there is no substantial difference between the averments of appellee’s answer and the allegations of the second paragraph of appellant’s complaint, so far as the latter goes. There are some facts stated in the answer, however, and admitted by appelknt to be true, as the case is here presented, which are not to be found in either paragraph of the complaint. These facts were manifestly pleaded by the appellee for the purpose of informing the mind and enlightening the conscience of the chancellor in relation to the present status and surroundings of appellee’s receivership. So that, even if there were irregularities, informalities, or, possibly, illegalities, which were not fundamental, in any of the proceedings in the suit wherein appellee was appointed receive!’, a court of equity might not, in ignorance of the disastrous complications which would result therefrom, as alleged, revoke, annul or set aside his appointment as such receiver.

To that end, apparently, and in addition to the facts stated in the second paragraph of appellant’s complaint, the appellee alleged, in substance, among other things, that for more than thirty years prior to, the 18th day of July, 1884, Alfred Harrison and John C. S. Harrison had been engaged in the business of private bankers in the city of Indianapolis, carrying on and conducting a bank of discount and deposit, under the firm name of “A. & J. C. S. Harrison,” and had acquired and held in their partnership name and business, for the use and benefit of their firm, a large amount of real estate, personal property, rights, credits and effects, of the value, to wit, of $100,000, and more; that, *on the day last named, A. & J. C. S. Harrison had become and were largely indebted to divers persons, firms and corporations, in the sum, to wit, of $600,000, and had thereby become hopelessly insolvent; that, in consequence of their indebtedness and embarrassment, they had become and were unable to continue their banking business, as they each well knew, and it became apparent to each of them that, unless steps were immediately taken to place their assets and effects under the control of a competent court, the same would be wasted and lost to a great extent in costs and expenses of litigation, by means whereof only a few of their creditors would receive any part of their claims or debts.

Appellee then stated in his answer the institution of the suit of Alfred Harrison v. John C. S. Harrison, in the Marion Superior Court, on the 18th day of July, 1884, in the vacation of such court, the plaintiff’s application therein to Judge Lewis C. Walker, one of the judges of such court, sitting in chambers on the day named and the next day, in vacation, for the appointment of a receiver, the full appearance of both parties on both days before Judge Walker, in his chambers, in such suit and application, the plaintiff by his attorneys therein, and the defendant appearing in his own proper person and acting for himself therein, the proceedings then and there had, and the orders then and there made, by and before Judge Walker, in such suit and application, and in the presence- of both the parties thereto appearing as aforesaid, and the appointment of appellee as receiver, his acceptance of the trust and qualification therein, and his taking and holding the possession of the property and assets, partnership and individual, of the parties to such suit; all these facts are stated in the answer substantially as the same are stated in the second paragraph of the complaint, but without coloring or qualification of any kind.

Appellee then alleged in his answer, that he had been sued as such receiver, in the courts of this State and elsewhere, giving the particulars;'that he had sold property and assets here and elsewhere, which had come to his hands as such receiver, and received the money therefor, giving the particulars ; and that he had sold real estate belonging to the firm of A. & J. C. S. Harrison, and having received the purchase-money, had executed conveyances thereof under the order of the court. And appellee further said, that he had employed counsel to conduct litigation growing out of and connected with the administration of his trust; and that, in all his conduct of the business of such trust, he had acted in good faith and in the honest belief that his appointment, as such receiver, was legal and valid. And appellee averred the fact to be -that, at the time the complaint of Alfred Harrison ■against John C. S. Harrison was filed, there were large unsettled differences of account between them, as partners, rendering an accounting between them necessary in the closing of their business, as prayed in such complaint, and appellee denied that there was any other or different understanding or agreement between the parties to that suit as to the proceeding therein than was set forth in his answer; and he also •denied that what was done in that suit, was done for any other purpose, or with any other intention, than was alleged in his answer. Wherefore, etc.

As we have already said, the sufficiency or, as appellant claims, the insufficiency of the facts stated in appellee’s answer to constitute a defence to appellant’s suit herein, is the only question we are required to consider and decide; and this question was presented to the court below in general term, and is properly presented here by the alleged error of the court at special term, in overruling the demurrer to such answer.

It is manifest, we think, that in the proceedings had, and the orders made, by and before Judge Walker, sitting in his chambers, in vacation, in the suit of Alfred Harrison v. John C. S. Harrison, for the appointment of a receiver for the insolvent banking firm of A. & J. C. S. Harrison, the learned judge and the parties to such suit acted, or intended to act, and believed they were acting, under and in conformity with the provisions of our civil code in relation to the appointment of receivers. In section 1222, R. S. 1881, in force since September 19th, 1881, it is provided as follows:

“A receiver may be appointed by the court, or the judge thereof in vacation, in the following cases:

“First. In an action by a vendor to vacate a fraudulent purchase of property, or by a Creditor to subject any property or fund to his claim.

“Second. In actions between partners, or persons jointly interested in any property or fund.

“Third. In all actions, when it is shown that the property, fund, or rents and profits in controversy is [are] in danger of being lost, removed, or materially injured.

“Fourth. In actions by a mortgagee for the foreclosure of a mortgage and the sale of the mortgaged property, when it appears that such property is in danger of being lost, removed, or materially injured; or when such property is not sufficient to discharge the mortgage debt, — to secure the application of the rents and profits accruing before a sale can be had.

“Fifth. When a corporation has been dissolved, or is insolvent, or is in imminent danger of insolvency, or has forfeited its corporate rights.

“Sixth. To protect or preserve, during the time allowed for redemption, any real estate or interest therein sold on execution or order of sale, and to secure to the person entitled thereto the rents and profits thereof.

“Seventh. And in such other cases as may be provided by law; or where, in the discretion of the court, or the judge thereof in vacation, it may be necessary to secure ample justice to the parties.”

In the foregoing section, and in every section of the civil code in relation to receivers, it will be seen that the judge of the court in vacation is clothed with exactly the same power and authority, no greater and no less, as is the court itself when in regular and open session. In the vacation of his court the judge thereof has the power and authority to appoint receivers in any of the cases specified in section 1222, above quoted, or in any other case provided by law, or when, in his discretion, it may be necessary to secure ample justice to the parties, he may order property, which is the subject of litigation, to be deposited in court, or with the clerk thereof in vacation, or delivered to the party subject to his further order or that of the court; he may punish the disobedience of any such order as for contempt, and, in addition, may make an order requiring the sheriff to take the money or thing, and deliver it or deposit it in conformity with his direction or that of the court; and under his control or that of the court, the receiver has power to bring and defend actions, to take and keep possession of the property, to receive rents, collect debts in his own name, and generally to do such acts respecting the property, as the court or the judge thereof may authorize.

When the judge of a court, in vacation, is engaged in doing these acts and making these orders, it is clear, we think, that he is exercising quoad hoe “the judicial power of the State,” and that his acts, orders and proceedings in the premises, although had in vacation, are the judicial proceedings of the court whereof he is judge. In section 1, of article 7, of our State Constitution of 1851, as such section was amended March 14th, 1881, it is provided as follows: “The judicial power of the State shall be vested in a Supreme Court, in circuit courts, and in such other courts as the General Assembly may establish.” Section 161, R. S. 1881.

In Shoultz v. McPheeters, 79 Ind. 373, after quoting this section of the Constitution, the court said: “All judicial powers are, by force of this provision, vested in the courts of the State. The Legislature has no authority to invest any other tribunals than the courts with judicial powers. It is certain that the Legislature can not exercise judicial powers. Columbus, etc., R. W. Co. v. Board, etc., 65 Ind. 427; Doe v. Douglass, 8 Blackf. 10; Young v. State Bank, 4 Ind. 301. Nor can these powers be vested elsewhere than in the tribunals designated or indicated by the Constitution. Judicial powers can not be delegated.” Accordingly, it was held in the case cited, that section 1404, R. S. 1881, wherein it was attempted to confer judicial power upon master commissioners in certain cases, was unconstitutional and void. So, also, in Gregory v. State, ex rel., 94 Ind. 384 (48 Am. R. 162), it was held, in view of the constitutional provision above quoted, that judiciál power can not be conferred by statute upon the clerks of courts.

It is true, however, that, in alegal sense, the judge of a court is the court; certainly, there can be no court, under our laws, constitutional or statutory, without a judge. Rogers v. Beauchamp, 102 Ind. 33; Shoultz v. McPheeters, supra. So nearly akin are the two words “ court ” and “judge,” in legal parlance, that, as they are used in the sections of the code now under consideration, they may well be regarded as synonyms, each of the other. Michigan, etc., R. R. Co. v. Northern Ind. R. R. Co., 3 Ind. 239, on p. 245.

It is in this legal sense, we think, that the words “judge thereof in vacation,” so often mentioned in the sections of the code before referred to, relating to receivers, should be taken and understood to mean “ court in vacation.” In other words, the phrase “ the court, or the judge thereof in vacation,” so often found in those sections, by supplying or filling a manifest ellipsis and the interchange of synonyms, may be made to read, in strict accordance with the legislative intent, and in perfect harmony with the constitutional provision above quoted, as follows: The court when in lawful session, or the court in vacation; or thus : The judge in term, regular, adjourned or special, or the judge in vacation. When Alfred Harrison, by his attorneys, filed his complaint against John C. S. Harrison, and appeared therewith before Judge Walker, and when the defendant therein filed his answer to such complaint, and, without process, appeared before and submitted his answer to Judge Walker, sitting in chambers, in vacation, in a cause or matter of which the court, whereof Judge Walker was judge,- had jurisdiction, we are of opinion that the court, or judge in vacation, thereby acquired fiill and complete jurisdiction of the subject-matter of such suit, and of the persons of the parties, plaintiff and defendant. The defendant had the legal right to appear in person for himself, without the issue or service of process. His voluntary appearance in the suit was equivalent to service of process therein, and such suit was commenced from the time of such appearance. Sections 315 and 1230, R. S. 1881.

It must be borne in mind that the legislation of this State, ■which confers precisely the same judicial power upon the judge of the court in vacation as upon the court in term, in relation to the appointment and control of receivers, and the management and disposition of the property in their hands, as heretofore stated, was first enacted by the General Assembly, and approved by the Governor on March 31st, 1879, and took effect and was in force on May 31st, 1879. This legislation was substantially re-enacted as a part of the ■civil code of 1881, and appears in the Revised Statutes of 1881, as sections 1222 to 1228 inclusive. In the same connection, and as a part of the civil code of 1881, the General Assembly enacted two new sections, of and concerning receivers, which are a revision of an act approved March 12th, 1875 (Acts 1875, Reg. Sess., p. 117), and are known as sections 1230 and 1231, R. S. 1881. It is provided in section 1230 as follows:

“ Receivers shall not be appointed, either in term or vacation, in any case, until the adverse party shall have appeared, or shall have had reasonable notice of the application for such appointment, except upon sufficient cause shown by affidavit.”

This section, it will be seen, provides for the voluntary appearance of the adverse party before the court or judge, either in term or vacation, or else that such party must have had reasonable notice of the application to the judge or court, either in term or vacation. But to what end shall the adverse party appear, or shall he be given reasonable notice •of the application, if not to confer jurisdiction of his person upon the court or judge, either in term or vacation? Fairly construed, this section so strongly implies, as to* strongly affirm, that receivers may be appointed by the judge or-court, either in term or vacation, in any proper case, when .the adverse party voluntarily appears before either the court or judge, or has had reasonable notice of the application, either in term or in vacation. If the adverse party voluntarily appear, or if, upon reasonable notice, he either appear or make default before the judge or court, either in term or vacation, in an equitable suit or application for the appointment of a receiver, and the proper orders are then and there made by the court or judge, either upon a hearing had or upon his default, for the appointment of a receiver and for the management and disposition of the property in custodia legis, can such party afterwards be heard to claim collaterally, or even upon a direct appeal, that all such proceedings by court or judge, either in term or vacation, are absolutely null and void, either because the plaintiff’s complaint or application did not state a cause of action or show an adversary proceeding? Or because no summons was issued or served on such complaint or application, and hence there was no action pending? Or because the adverse party, in such complaint or application, voluntarily appeared and filed his answer thereto before the judge in vacation, when, as claimed, there was no statute authorizing such voluntary appearance before the judge in vacation, or making such appearance equivalent to the service of a summons issued on such complaint or application, and to. the commencement of a suit in equity at and from the time of such appearance?

In the light of section 1230, above quoted, we are of opinion that these questions, each and all, must be answered in the negative. As already stated, it must be held that the voluntary appearance of John C. S. Harrison to the complaint of Alfred Harrison against him, before Judge Walker in vacation, in a suit whereof the judge in vacation has the same judicial cognizance, and as to which he is by law clothed with the same judicial power of the State, as the court in term of which he is judge, is equivalent to the issue and service of process therein; and the suit must be deemed to have been commenced at and from the time of such appearance.

In section 1231, supra, it is provided as follows: “In all cases hereafter commenced or now pending in any of the courts of this State, in which a receiver may be appointed or refused, the party aggrieved may, within ten days thereafter, appeal from the decision of the court to the Supreme Court, without awaiting the final determination of such case,” etc.

It will be observed that this section of the civil code makes no provision, in express terms, for any appeal from the orders of the judge in vacation, either appointing or refusing to appoint a receiver. Yet it can not be doubted, as it seems to us, that in the enactment of this section of the code, the General Assembly intended to and did provide that whenever the court or judge, either in term or vacation, in any case thereafter commenced or then pending, might appoint or refuse to appoint a receiver, the party aggrieved might, within ten days thereafter, appeal from the decision of the court or judge, either in term or vacation, without awaiting the final determination of the case. This is the construction given this section of the code in Barnes v. Jones, 91 Ind. 161, which was an appeal from the appointment of a receiver by the judge, in vacation, where, as in the case of Alfred Harrison v. John C. S. Harrison, the relief sought was the dissolution of a partnership and the appointment of a receiver, and the order of the judge was affirmed by this court. This section of the code and the construction we have placed upon it give strong support, we think, to our opinion already expressed, that the words “court” and “judge,” as they are used in the sections of the code providing for the appointment of receivers, and for the management and disposition of property in their hands, may well be regarded as synonyms, each of the other.

Whether the complaint of Alfred Harrison, or the answer of John C. S. Harrison, be good or bad, or whether the court, or judge in vacation, committed error in any of the acts, orders or proceedings, had or done upon such complaint and answer, are questions we are not raquired to consider and decide in the case in hand. Such acts, orders or proceedings, even though they might be found to be erroneous, were certainly not void, because, as we have seen, the court or judge in vacation had jurisdiction of the subject-matter and of the persons of the parties. Appellant’s suit is a collateral attack on such acts, orders and proceedings of the court or judge in vacation in the appointment of the appellee as receiver, and can not be maintained. This point was so decided by this court in Cook v. Citizens Nat’l Bank, 73 Ind. 256. The court there said: “ Whether the action of the court in appointing a receiver was according to law, we need not decide. If the appointment was erroneous, it was not void, and can not, in a collateral proceeding, be assailed, even by the parties thereto, and certainly not by strangers in the attitude of the appellant.” Kerr Receivers, p. 166; Storm v. Ermantrout, 89 Ind. 214.

It was claimed in argument by appellant’s counsel that the suit and proceedings before Judge Walker, in vacation, which resulted in appellee’s appointment as receiver, were in contravention of the terms of the statute providing for voluntary assignments by insolvent debtors of all their property, in trust for the benefit of all their creditors. This claim is wholly untenable, as it seems to us, and can not be sustained. There is no substantial conflict between that statute and the provisions of the civil code, in relation to the appointment of receivers. But if there were such conflict, it needs no argument to show that the statute in question must give place to the provisions of the code, as the later expression of the legislative will. The voluntary assignment law took effect on March 5th, 1859, while the provisions of the. civil code for the appointment of receivers, in certain cases, became a part of our law, on September 19th, 1881. The statute and the provisions of the code referred to, we think, may well stand together as parts of our law. While it is true that the firm of A. & J. C. S. Harrison might, not under the letter of the statute, but under its provisions as construed by this court, have made a voluntary assignment in trust for their creditors, yet, it must be held that this fact would not preclude either member of the firm from resorting to a court of equity for the appointment of a receiver. Under either procedure, the end to be accomplished is precisely the same, namely, the equal distribution of the property and assets of the firm among its creditors.

Filed Jan. 29, 1886.

The Marion Superior Court is a court of general jurisdiction, and, as such, is clothed with the judicial power of the State. Its proceedings, whether in term or vacation, are judicial proceedings, and can not be collaterally attacked. We conclude, therefore, in the case at bar, that appellee’s answer is a complete defence to appellant’s cause of action, and that the demurrer to such answer was correctly overruled.

We find no error in the record of which appellant can complain.

The judgment is affirmed, with costs.

Mitchell, J., dissents, and will file a dissenting opinion.

Elliott, J., took no part in the decision of this cause.