Opinion
No. 26,580.
Filed October 20, 1936.
1. MORTGAGES — Foreclosure by Action — Appointment of Receiver — Qualification of Receiver — Expert Witness at Hearing. — Fact that receiver appointed pending mortgage foreclosure and sale was called as an expert witness to testify as to value of the property would not disqualify him to act as receiver in the absence of any showing of other interest in the controversy. p. 466.
2. APPEAL — Review — Parties in Interest — Verified Complaint. — On appeal from an interlocutory order appointing a receiver in a mortgage foreclosure action, allegation in verified complaint that plaintiffs were owners of the bonds and mortgage sued on held sufficient to establish plaintiffs as the real parties in interest, even though there was evidence to the contrary, since the court would not weigh conflicting evidence. p. 466.
3. MORTGAGES — Foreclosure by Action — Appointment of Receiver — Sufficiency of Evidence. — Order appointing a receiver pending mortgage foreclosure and sale held supported by evidence that the property was not being cared for, was in a bad state of repair, and rapidly depreciating in value, notwithstanding evidence that the property was worth more than could possibly be recovered. p. 466.
4. MORTGAGES — Foreclosure by Action — Appointment of Receiver — Sufficiency of Pleadings. — On appeal from an order appointing a receiver pending mortgage foreclosure and sale, where the complaint alleged facts sufficient to warrant the appointment of a receiver, it was immaterial whether the complaint stated a cause of action as against demurrer. p. 467.
5. MORTGAGES — Foreclosure by Action — Jurisdiction of Subject-Matter — Parties in Interest. — In mortgage foreclosure proceeding, objection to court's jurisdiction of the subject-matter on the ground plaintiffs had no beneficial interest was overcome by evidence that they were the owners of the bonds secured by the mortgage. p. 467.
6. APPEARANCE — Waiver of Process by Appearance. — Appearance of defendants in a foreclosure action, filing a motion to make the complaint more specific, and introducing evidence, held sufficient to confer jurisdiction over defendants even though summons was not issued. p. 467.
From Lake Superior Court; Lawrence Becker, Judge.
Action by First Calumet Trust and Savings Bank of East Chicago and others against Thomas E. Rumas and others to foreclose a mortgage and for a receiver. From an interlocutory order appointing a receiver, defendants appealed. Affirmed.
George P. Rose, L. Russell Newgent and E. Miles Norton, for appellants.
Riley, Reed, Murphy McAtee, for appellees.
This is an appeal from an interlocutory order appointing a receiver for mortgaged property pending foreclosure and sale. In addition to the verified complaint, the court heard oral evidence on the subject of the necessity of the appointment.
The complaint alleges that the defendants (appellants) became indebted to the First Calumet Trust and Savings Bank; that the indebtedness was evidenced by certain bonds or notes, secured by a mortgage executed to the bank, the bonds being payable to bearer; that the plaintiffs, Walter J. Riley, Carl A. Westberg, and Walter O. Harmon, are the owners and holders of the bonds as a bondholders' protective committee; that the indebtedness secured by the mortgage is past due; that no one is looking after the buildings on the mortgaged premises and that they are in a bad state of repair, and are fast depreciating in value, and that the premises will not sell for sufficient to pay the mortgage debt. There was evidence to support these allegations sufficient to authorize the appointment of a receiver.
The only propositions brought forward to support the assignment of errors are:
(1) That the court erred in appointing Theodore F. Hein as receiver for the reason that he is an interested party because he was called as a witness as to the value and condition of 1. the property. It appears that he was asked to examine the property so that he might testify as an expert, and that he testified. This is not sufficient to disqualify him because of interest. It is not shown that he has any interest in the controversy. No authority is cited to support appellants' contention upon this proposition.
(2) That the decision of the court is contrary to law because the action is not prosecuted by the real parties in interest. It is said that the evidence conclusively established the fact 2. that neither of the plaintiffs has any interest in the notes and mortgage sued upon. But it appears from the verified complaint that they are the owners, and if evidence to the contrary were pointed out we would not weigh the conflicting evidence.
(3) That the evidence conclusively shows that the property in controversy was of a value exceeding the possible amount of recovery. But witnesses testified to the contrary, and that 3. the property was rapidly depreciating and in a bad state of repair.
(4) That the complaint is insufficient to state a cause of action. But we are not concerned with the sufficiency of the complaint as against a demurrer. It states 4. sufficient facts to justify the appointment of a receiver. Kist et al. v. Coughlin et al. (1936), post 622, 1 N.E.2d 602.
(5) That the court had no jurisdiction of the subject-matter or of the parties. As to the subject-matter, it is suggested that the plaintiffs in the action have no beneficial 5, 6. interest, but the evidence is that they are the owners of the bonds. As to jurisdiction of the parties, it is said that there was no summons issued, but the record shows that the defendants appeared to the action, filed a motion to make the complaint more specific, and introduced evidence. This was sufficient to give the court jurisdiction of their person even though summons was not issued.
We find no errer.
Judgment affirmed.