property is in danger of being lost, removed, or materially injured; or when such property is not sufficient to discharge the mortgaged debt, -to secure the application of the rents and profits accruing before a sale can be had. When the mortgaged property is inadequate to secure the debt, and the person liable therefor is insolvent, a receiver may be appointed to take charge of the rents and profits. Main v. Ginthert, 92 Ind. 180; Hursh v. Hursh, 99 Ind. 500. It need not be alleged that the mortgagor is insolvent in order to authorize the appointment of a receiver. Pouder v. Tate, 96 Ind. 330; Hursh v. Hursh, 99 Ind. 500. If mortgaged lands are sold for less than the amount due on the decree of foreclosure, and the mortgagee is the purchaser, and the lands are occupied by tenants, a receiver may be appointed to collect the rents accruing during the time allowed for redemption. Merritt v. Gibson, 129 Ind. 155. If the mortgagor occupies the lands sold, a receiver can not be appointed to collect from him the rents accruing during the time allowed for redemption. Sheeks v. Klotz, 84 Ind. 471. When a receiver has been properly appointed under this clause he may be continued after decree of foreclosure. Buchanan v. Berkshire Co., 96 Ind. 510. After an appeal to the supreme court in an action to foreclose a mortgage, the lower court, in a proper case, has authority to appoint a receiver to collect the rents pending the appeal. Brinkman v. Ritzinger, 82 Ind. 358. A junior mortgagee may, in a proper case, have a receiver appointed to collect rents in an action to foreclose a senior mortgage. Buchanan v. Berkshire Co., 96 Ind. 510. If the debtor seeks to claim the rents as exempt from execution, he should make such claim in the application for the appointment of a receiver. Storm v. Ermantrout, 89 Ind. 214. Fifth. When a corporation has been dissolved, or is insolvent, or is in imminent danger of insolvency, or has forfeited its corporate rights. See section 3439. When a corporation is insolvent, or in imminent danger of insolvency, a receiver may be appointed. Howard v. Whitman, 29 Ind. 557; First Nat. Bank, etc., v. United States, etc., Co., 105 Ind. 227. When a suit is brought against a corporation simply for an accounting and the ap pointment of a receiver, a sale of the corporate property should not be ordered. Wayne Co. v. Hammons, 129 Ind. 368. 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. When necessary to secure justice between the parties, a receiver may be appointed to collect the rents and profits of lands sold on execution, during the time allowed for redemption. Connelly v. Dickson, 76 Ind. 440; Travellers' Co. v. Brouse, 83 Ind. 62. If the mortgagor is in actual occupancy of the property, a receiver should not be appointed to receive the rents during the time allowed for redemption from a foreclosure sale. Sheeks v. Klotz, 84 Ind. 471. If the property sold under a mortgage is in possession of tenants, a receiver may be appointed to collect rents during the time allowed for redemption when the lands do not sell for enough to pay the judgment. Merritt v. Gibson, 129 Ind. 155. 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. After an appeal to the supreme court the lower court may appoint a receiver, in a proper case, to take charge of the property pending the appeal. Brinkman v. Ritzinger, 82 Ind. 358. In a suit by stockholders against a corporation and the officers thereof, a receiver may be appointed. Wayne Co. v. Hammons, 129 Ind. 368. Judges have the same power in vacation to appoint receivers that courts have when in session. Pressley v. Lamb, 105 Ind. 171; Bank v. U. S. Encaustic Co., 105 Ind. 227. Ordinarily the sufficiency of the complaint in the main action can not be tested on the hearing of the application for a receiver. Bufkin v. Boyce, 104 Ind. 53. The application for a receiver may be heard either upon oral testimony or affidavits. Hursh v. Hursh, 99 Ind. 500. A receiver can only be appointed in a suit where there are adversary parties, but the defendant may admit the truth of the facts stated in the application. Pressley v. Harrison, 102 Ind. 14; Bank v. U. S. Encaustic Co., 105 Ind. 227. A change of judge may be had in applications for the appointment of receivers. Shoemaker v. Smith, 74 Ind. 71. The appointment of receivers can not be collaterally attacked. Cook v. Bank, 73 Ind. 256; Storm v. Ermantrout, 89 Ind. 214; Bank v. U. S. Encaustic Co., 105 Ind. 227. Courts appointing receivers have entire control over the property and funds of the receivership, and the receiver can not question any order of the court. Herrick v. Miller, 123 Ind. 304. Until the receiver is appointed and actually in possession, third parties are not affected by the order. The appointment can not be attacked collaterally. Cook v. Bank, 73 Ind. 256. 1237. (1223.) Who shall not be.-246. No party or attorney, or other person interested in an action, shall be appointed receiver therein. 1238. (1224.) Oath and bond.-247. Before entering upon his duties, the receiver must be sworn to perform them faithfully, and with one or more sureties, approved by the court, or judge thereof in vacation, execute a written undertaking payable to such person as the court, or the judge thereof in vacation, shall direct, to the effect that he will faithfully discharge the duties of receiver in the action and obey the orders of the court or judge thereof. 1239. (1225.) Deposit of money in court.-248. When it is admitted by the pleading or examination of a party that he has in his possession or under his control any money or other thing capable of delivery, which, being the subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court, or the judge thereof in vacation, may order the same to be deposited in court, or with the clerk thereof in vacation, or delivered to such party, with or without security, subject to the further order of the court or the judge thereof. This section only applies to cases where a party by a pleading or on examination admits that he has possession of money, or other thing, subject of controversy, belonging to or held in trust for another. Swingle v. Bank, 41 Ind. 423. 1240. (1226.) Failure to deposit-Order to sheriff.-249. Whenever, in the exercise of its authority, a court, or the judge thereof in vacation, shall have ordered the deposit or delivery of money or other thing, and the order is disobeyed, the court or the judge, besides punishing the disobedience as for contempt, may make an order requiring the sheriff to take the money or thing, and deposit it or deliver it in conformity with the direction of the court or judge thereof. 1241. (1227.) Money not to be loaned-Exception.-250. Money deposited or paid into court, or with the clerk thereof, in an action, shall not be loaned out, unless with the consent of all the parties having an interest in or making claim to the same. 1242. (1228.) Powers of receiver.-251. The receiver shall have power, under control of the court, or of the judge thereof in vacation, 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. A receiver can not sue in his own name, unless authorized by statute or the order appointing him. Garver v. Kent, 70 Ind. 428; Manlove v. Burger, 38 Ind. 211. See Pouder v. Catterson, 127 Ind. 434. The statute authorizes receivers of mutual insurance companies to sue in their own names. Manlove v. Burger, 38 Ind. 211. When a receiver sues in his own name, the complaint must show his authority to sue in that manner. Greisel v. Schmal, 55 Ind. 475; Garver v. Kent, 70 Ind. 428; Davis v. Ladoga Co., 128 Ind. 222. Receivers appointed in other states may sue in this state. 425; Catlin v. Wilcox, 123 Ind. 477. Metzner v. Bauer, 98 Ind. Receivers can usually only mantain suits where the party whose effects he receives might have sued. La Follett v. Akin, 36 Ind. 1; State, ex rel., v. Sullivan, 120 Ind. 197. A receiver may sue for the conversion of property of which he has the right of possession. Kehr v. Hall, 117 Ind. 405. Receivers may sue in their own names without an order of court to recover possession of property from their lessees. Pouder v. Catterson, 127 Ind. 434. When a receiver is appointed, he alone can sue to enforce any rights connected with the receivership. Davis v. Ladoga Co., 128 Ind. 222. A receiver of the effects of an insolvent debtor can not sue the sureties on a penal bond of the debtor. State, ex rel., v. Sullivan, 120 Ind. 197. The jurisdiction of receivers over property is only co-extensive with the jurisdiction of the courts appointing them. Catlin v. Wilcox, 123 Ind. 477. In actions against receivers, the complaint should aver that leave has been obtained from the court to sue. Keen v. Breckenridge, 96 Ind. 69. The authority of a receiver to assign a contract can only be put in issue by a pleading under oath. Vannoy v. Duprez, 72 Ind. 26. Property in possession of a receiver is not subject to sale under execution. Knodev. Baldridge, 73 Ind. 54. The appointment of receivers does not usually affect existing liens. Lorch v. Aultman, 75 Ind. 162; Dann Co. v. Parkhurst, 125 Ind. 317. Courts appointing receivers have entire control over the property of the receivership, and receivers can not question any order of the court in regard thereto. Herrick v. Miller, 123 Ind. 304. Receivers can not purchase property connected with the receivership, for their own benefit. Herrick v. Miller, 123 Ind. 304. 1243. (1229.) Court may enforce payment.-252. When the answer of the defendant admits part of the plaintiff's claim to be just, the court, on motion, may order the defendant to satisfy that part of the claim, and may enforce the order by execution. 1244. (1230.) Notice of application-Exception.-253. 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. If the appointment of a receiver is prayed for as final relief, no other notice is required than that given of the main action. Newell v. Schnull, 73 Ind. 241. Under the act of 1875 a receiver could not be appointed until the defendant had appeared and answered in the action, or had been notified thereof and of the application for a receiver. May v. Greenhill, 80 Ind. 124. An appearance by a defendant to an application for the appointment of a receiver is a waiver of the service of notice. Pressley v. Lamb, 105 Ind. 171; Bank v. U. S. Encaustic Tile Co., 105 Ind. 227. The consent of parties to the appointment of a receiver will not confer jurisdiction on the court when no action is pending between the parties. Pressley v. Harrison, 102 Ind. 14. 1245. (1231.) Appeal in ten days.-254. 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; and in cases where a receiver shall be or has been appointed, upon the appellant filing an appeal bond with sufficient surety, in such sum as may have been required of such receiver, conditioned for the due prosecution of such appeal, and the payment of all costs or damages that may accrue to any officer or person by reason thereof, the authority of such receiver shall be suspended until the final determination of such appeal. An appeal may be taken from an order appointing, or refusing to appoint, a receiver. Dale v. Kent, 58 Ind. 584; Pressley v. Lamb, 105 Ind. 171. The appeal must be taken within ten days after the date of the order. Vance v. Schayer, 76 Ind. 194; Hursh v. Hursh, 99 Ind. 500. The action of the court in appointing a receiver may be reviewed by the supreme court on an appeal of the main action. Buchanan v. Berkshire Co., 96 Ind. 510. On appeal from an order appointing a receiver, the sufficiency of the complaint in the action will not be determined, but it will be looked to in considering the necessity of such appointment. Naylor v. Sidener, 106 Ind. 179. When an appeal is taken from an order appointing a receiver, a motion for a new trial is not necessary to save exceptions to the action of the court. Shoemaker v. Smith, 74 Ind. 71. On appeal from an order appointing a receiver, no questions are considered except those involved in the appointment. Main v. Ginthert, 92 Ind. 180. The supreme court will not weigh conflicting evidence on an appeal from an order appointing a receiver. Naylor v. Sidener, 106 Ind. 179. SEC. ARTICLE 48.-REINSTATEMENT OF RECORDS. 1246. When copy may take place of lost record. 1247. Complaint to restore. 1248. Summons-Publication. 1249. Answer-Proofs - Order of rein statement. 1250. Setting aside reinstatement. 1263. Record of testimony, when evidence. 1265. Commissioner's duties and powers. 1266. County board may remove commis sioner. SEC. 1267. Notice of appointment. 1269. Entry of proofs before commissioner. 1270. Testimony, not conclusions, to be set out. 1271. Signing record - Certifying — Evidence. 1272. Copies to have force of originals. 1273. Pay of commissioner, clerk, and recorder. 1274. Record of copy of destroyed will. 1278. Tax-payers must prove payment. 1282. Damaged books preserved. 1285. Records partly destroyed supplied [1881, p. 50. In force May 9, 1881.] 1246. (1232.) When copy may take place of lost record.-1. Whenever any record, bond, execution, order of sale, or other writ, or the returns thereon, or any other paper or part thereof, in any judicial proceeding of any judicial court of this state, shall have been, or shall hereafter be, lost or destroyed, any party or person interested therein may, on application, by complaint in writing and upon notice, as provided in section three of this act, in the court having jurisdiction over, or the custody or control thereof, and on showing to the satisfaction of such court, that the same has been lost or destroyed without fault or neglect of the party or person making such application, obtain an order from such court authorizing such defect to be supplied by a duly certified copy of the original, where the same can be obtained; which certified copy shall be entered of record in said court, and shall thereafter have the same force and effect as the original would have had in all respects. By act of 1883, Acts 1883, pp. 109 and 110, Elliott's Supp., sections 21 and 22, and ante sections 467, 468, deeds in judicial proceedings are made prima facie evidence of the contents of destroyed records. When the record of a judgment is destroyed, execution can not issue thereon until the record is reinstated. Sheldon v. Arnold, 17 Ind. 165. Contents of lost or destroyed records may be proven the same as the contents of other lost writings. Jones v. Levi, 72 Ind. 586; Johnson v. State, ex rel., 80 Ind. 220; McCullough v. Davis, 108 Ind. 292. |