THE NORTH EASTERN REPORTER VOLUME 151 GREEK ORTHODOX CHURCH, ST. TRIAS, (Supreme Court of Indiana. March 12, 1926.) Holmes, and Henry M. Dowling, all of Indianapolis, for appellants. Joseph R. Morgan, Ralph K. Kane, Gideon W. Blain, and Robert Hollowell, Jr., all of Indianapolis, for appellees. 1. Appeal and error 71(3)-Interlocutory PER CURIAM. Fifty-seven of the appelorder for delivery of possession of real prop-lants and ten of the appellees were among erty and granting temporary injunction is appealable (Burns' Ann. St. 1926, § 712; Acts 1921, & 251, § 1). Interlocutory order, in controversy for possession of church property, directing delivery of possession of real property and granting a temporary injunction, held appealable in view of Burns' Ann. St. 1926, § 712; Acts 1921, c. 251, § 1. 2. Appeal and error 325-Interveners held proper parties appellant on appeal from interlocutory order granting injunction and for delivery of possession of church property, all in denial of prayers of intervening petitions. the members of the Greek Orthodox Church, St. Trias, which owned and occupied a church building in the city of Indianapolis. The church was incorporated, and had an official seal and certain personal property, besides the building used as a place of wor. ship, and employed a pastor who was satisfactory to part of the church members, including appellants. Ten of the appellees brought an action against seven of the appellants (and perhaps against some other persons not parties to this appeal), asserting that plaintiffs were entitled to the possession and control of the seal and property of the Interveners were all proper parties appellant on appeal from interlocutory order requir-church, and in that action the trial court aping them to permit plaintiffs to take possession of church which interveners were occupying and forbidding their pastor from ministering to them any further in that church, all in denial of prayers of their intervening petitions. pointed appellees Morgan and La Fuse as receivers for all that was so in controversy, after which the appellants not therein made defendants, being the church corporation and half a hundred of the church members, filed 3. Appeal and error 395-Appeal from Inter-intervening petitions, disputing the right of locutory order will not be dismissed because some of appellants failed to sign appeal bond which was signed by surety and approved by court. Appeal from interlocutory order granting injunction and for delivery of possession of church property will not be dismissed for failure of some of appellants to sign bond, where it was signed by surety, approved by court, and duly filed on behalf of all appellants. Appeal from County. Superior Court, Marion Action by Harry Alexander and others against Pete Brown and others, in which the Greek Orthodox Church, St. Trias, and others intervened. From the judgment some of defendants and interveners appeal. On motion to dismiss appeal. Motion overruled. Arthur R. Robinson, Frank A. Symmes, Garth B. Melson, Donald F. La Fuze, Ira M. the plaintiffs to possession and control of the church property. There was a hearing, after which the trial court entered an order, continuing in effect the receivership, and commanding that the possession and control of all the church property in controversy, including the seal, the house of worship, and all the property of the church excepting the money on hand, should be turned over to the ten plaintiffs (appellees). The original defendants were expressly commanded to turn over to the plaintiffs the keys of the church building and the seal, and all other property belonging to the church of which they had possession, and an injunction was entered forbidding any further religious services to be held in the church edifice by the pastor employed by and serving the faction to which the defendants and interveners (appellants) belonged. Each of the appellants prayed an appeal, and an order of court was entered For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 151 N.E.-1 35(1)-Appointment of receiv er without notice solely on verified complaint alleging material facts on information and belief held error. Court erred in appointing receiver without notice in replevin upon unsupported verified assertion of defendant of his belief in facts which, if existent, might give him right to continue in possession of property. granting these prayers upon the filing of an [2. Receivers Appeal from Rush Circuit Court. Replevin by Arthur Jordan against Alpheus Percy Walker and others. From an order appointing a receiver without notice to plaintiff, he appeals. Reversed, with directions. Titsworth & Titsworth, of Rushville, and Elmer E. Stevenson, of Indianapolis, for appellant. [1, 2] This was an interlocutory order for delivery of the possession of real property, and also granting a temporary injunction, from which an appeal lies. Section 712, Burns' 1926; section 1, ch. 251, Acts 1921, p. EWBANK, C. J. Appellant brought an 741. And as it denied all relief to the inter- action of replevin for the possession of cerveners, and required them to permit appel- tain imported Jersey cattle, alleged to belong lees to take possession of the church they to him, and to have been delivered by appelwere occupying, and forbade their pastor any further to minister to them in that church, all in denial of the prayers of their intervening petitions, they were all proper parties appellant. Brooks v. Doxey, 72 Ind. 327; Voorhees v. Indianapolis Car, etc., Co., 39 N. E. 738, 140 Ind. 220, 225; Polk v. Johnson, 78 N. E. 652, 79 N. E. 491, 167 Ind. 548, 551; Ewbank's Manual (2d Ed.) § 142b, P. 304. [3] The appeal bond being signed by the surety, approved by the court, and duly filed on behalf of all the appellants, the mere fact that some of them failed to sign the bond is not cause for dismissing their appeals. Rockey v. Hershman, 138 N. E. 339, 343, 193 Ind. 168, 180. Appellees' motion to dismiss is overruled. Sufficient cause being shown by petition, together with the fact that appellants' briefs have been filed some days ago, it is ordered that appellees shall file their briefs on or be fore April 12, 1926, and that appellants shall file their reply briefs on or before April 23, 1926. JORDAN v. WALKER et al. (No. 24432.) (Supreme Court of Indiana. March 11, 1926.) 1. Replevin 71(2)-Beliefs of defendant as to ownership of cattle held not to constitute evidence that such were facts. lee Walker and his wife to appellee Boyd, and to be detained on Boyd's farm in Rush county, Ind. The defendants having failed to give an undertaking, within 24 hours, for the safe-keeping and delivery of the property, the plaintiff gave such an undertaking, and the cattle were delivered to him, as provided by section 1318, Burns' 1926 (section 1270, R. taking was given, appellee Boyd, one of the S. 1881). On the same day that this underdefendants in the replevin suit, verified and filed a complaint, asking that a receiver for the cattle be appointed, without notice, and caused it to be presented to the judge of the Rush circuit court, wherein the replevin suit was pending, and procured the judge to appoint a receiver, without any notice to appellant, the plaintiff in the replevin suit, and to enter an order "that said receiver take charge of the property described in the writ of replevin issued in this cause, and manage and preserve the same until the further order of this court," fixing the amount of the appellant appeared and excepted to the apreceiver's bond at $5,000. Seven days later pointment of the receiver, tendered and filed an appeal bond in the sum of $5,000, with sureties, which were approved, and in all things duly perfected an appeal from the appointment of the receiver. The record shows that the application for a receiver was based on the alleged facts that the cattle were the property of the appellee Walker, who had "full and complete title" thereto; that Walker had put Boyd in possession of them under a certain alleged contract; that the cows were in such a condition that they could not then be removed without injury to their health; and that appellant was intending to take them away, out of the county, and beyond the jurisdicFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes That defendant in replevin was told, and believed, his codefendant was owner of property, and believed that his contract gave him right of possession, did not constitute evidence that such were facts. (151 N.E.) tion of the court, together with the alleged | cated, we do not find it necessary to pass upfact that the petitioner, who claimed only on the sufficiency of any other reasons. the right of temporary possession and use, The judgment is reversed, with directions was a poor man, and not able to give a deliv- to set aside the order appointing a receiver. ery bond in an amount equal to the value of the cattle. And the record further shows that the appointment of a receiver, without notice, was not based on any evidence whatever of the facts alleged, except the verified complaint itself, no other affidavits having been filed. In his verification of the complaint appellee Boyd averred that the matters and things therein stated were "true in substance and in fact." But in the body of the pleading thus verified the facts sworn to be true, so far as they related to Walker's title to the cattle or his right to hold possession of them or to transfer such right of possession to Boyd, were not shown to be within the affiant's own knowledge; the affidavit merely reciting that Walker "informed this said petitioner that he had purchased for and on his own behalf" the cattle in question, and "that affiant is informed, and verily believes, the defendant Alpheus P. Walker has full and complete title to said property"; and, after averring that Walker put Boyd in possession under a certain contract, the complaint further stated that affiant "believes he is entitled to possession of said animals for a period of five years from the 15th day of December, 1921, and to have said contract executed." [1, 2] The mere fact that Boyd was told the cattle belonged to Walker, with whom he had a contract, and "believed" Walker to be the owner of them, and "believed" that his contract with Walker gave him the right to keep possession, did not constitute evidence that such were the facts, whatever force these averments might have as matter of pleading. The unsupported assertion by a petitioner, of his belief of facts, which, if shown to be true, might give him some right to continue in possession of property that another is seeking to take from him by proceedings in replevin, is not sufficient to establish his right to the appointment, without notice, of a receiver of such property. It was error to appoint a receiver, without notice, upon evidence which consisted solely of a verified complaint alleging material, facts only upon information and belief. Tucker v. Tucker, 142 N. E. 11, 194 Ind. 108, 111, and authorities cited; Mannos v. Bishop-Babcock-Becker Co., 104 N. E. 579, 181 Ind. 343, 347; Marshall v. Matson, 86 N. E. 339, 171 Ind. 238, 250; Henderson v. Reynolds, 81 N. E. 494, 168 Ind. 522, 11 L. R. A. (N. S.) 960, 11 Ann. Cas. 977. EARL v. STATE. (No. 24557.) (Supreme Court of Indiana. March 9, 1926.) 1. Courts 85(1). Rules of court are not only binding on litigants, but the court itself as well. 2. Criminal law 1130(5)—Brief failing to include evidence in narrative form or points or authorities relied on held to present no question of evidence (Rules of Supreme and Appellate Courts, No. 22, cl. 5). A brief which did not include therein a condensed recital of evidence in narrative form, or contain points or authorities relied on, did not comply with Supreme and Appellate Court rule No. 22, cl. 5, and no question on evidence is pre sented. Appeal from Vigo Circuit Court. Jack Earl was convicted of sale of intoxi cating liquor, and he appeals. Affirmed. Beecher & Beecher, of Terre Haute, for appellant. U. S. Lesh, Atty. Gen., for the State. MYERS, J. Appellant was charged by affidavit and convicted in the court below of the offense defined by section 20, Acts 1917, Pp. 15, 25 (section 2740, Burns' 1926). From a ed this appeal, assigning as error the overjudgment rendered against him, he prosecutruling of his motion for a new trial, wherein as his only cause therefor, he asserts that the finding of the court was not sustained by sufficient evidence. It appears from appellant's brief, under the heading of "Argument," that five witnesses gave testimony upon the trial of this cause. Three for the state, we infer from what is there said, testified that on two different occasions they purchased intoxicating liquor from appellant. This testimony was denied in toto by the defendant and his wife. The only question sought to be presented on appeal depends entirely upon a consideration of the evidence to sustain the finding of the court. There is no attempt whatever on the part of appellant to prepare his brief in compliance with rule 22, cl. 5, of the Rules of this and the Appellate Court, by including therein a condensed recital of the evidence in narrative form, nor does it contain the points relied on, or any authority to support his contention of insufficient evidence. [1] The state insists that we enforce the above rule, and has refused to supply the defects in appellant's brief. Rules of court are not only binding upon litigants, but the Other grounds for holding the appointment of a receiver erroneous in the instant case are suggested by counsel, but, since the judgment must be reversed for the reason indi-court itself as well. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [2] For failure of appellant to prepare his brief in compliance with the above-mentioned rule, no question on the evidence is presented for our consideration. Barksdale v. State (Ind. Sup.) 147 N. E. 765; Wallace v. Shoemaker, 143 N. E. 285, 194 Ind. 419; Rooker v. Fidelity Trust Co., 131 N. E. 769, 191 Ind. 141, 163. Judgment affirmed. DARNELL v. STATE. (No. 25015.) March 10, 1926.) 1. Intoxicating liquors 249-Authority of a justice of the peace to appoint a constable does not forbid him to issue search warrant to a sheriff (Burns' Ann. St. 1914, § 1727 [Burns' Ann. St. 1926, § 1917, 2 Rev. St. 1852, p. 471, § 110]; Acts 1917, c. 4, § 25). (Supreme Court of Indiana. Authority conferred on a justice of the peace by Burns' Ann. St. 1914, § 1727 (Burns' Ann. St. 1926, § 1917, 2 Rev. St. 1852, p. 471, § 110), to appoint a special constable does not forbid him to issue a search warrant to a sheriff under Acts 1917, c. 4, § 25. EWBANK, C. J. [1, 2] An indictment was returned against appellant, the fourth count judge "to any officer having power to serve criminal processes." Section 25, c. 4, Acts 1917, p. 27. And appellant has not only failed to suggest any reason for not deeming that statute decisive of the question under consideration, but he does not even mention its existence in his brief, citing as the only authority for his contention the language of section 1727, Burns' 1914 (section 1917, Burns' 1926, section 110, 2 R. S.. 1852, p. 471), which empowers justices of the peace to appoint special constables in particular causes whenever there is no constable convenient. Even after the brief on behalf of the state, filed by the Attorney General, had called attention to the language of section 25, supra, no reply brief was filed, and, when the cause was set down for oral argument, at appellant's request, nobody appeared on his behalf to make an argument. The mere fact that a justice of the peace has power to appoint a special constable, under the provisions of a statute enacted 75 years ago, could not invalidate a search warrant issued and served in exact conformity with the provisions of a recent statute. And no objections to the recent statute being pointed out, and it being no part of the duty of this court to search out reasons for reversing a judgment not suggested by appellant, we shall content ourselves with saying that the authority conferred upon a justice of the peace by law, in 1852, to appoint a special constable, does not forbid him to issue a warrant to a sheriff, for service, under authority of a later statute. The judgment is affirmed. FERRIS v. STATE. (No. 25010.) (Supreme Court of Indiana. March 12, 1926.) Appeal and error 660 (2)-Remedy to have omitted exhibit incorporated in bill of exceptions is by application to circuit court to correct its record, and then have Supreme Court call up amended bill. Remedy to have exhibit inadvertently omitted from longhand report of evidence incorporated in bill of exceptions is first by application to the circuit court to correct its record by a nunc pro tunc entry, to have bill of exceptions recite correctly the evidence including the exhibit, and then to apply to the Supreme Court to call up the amended bill as part of the record on appeal. of which charged that he unlawfully and feloniously transported intoxicating liquor in an automobile. He was found guilty on the fourth count, and judgment was rendered accordingly. The only question for decision discussed or even suggested in his brief is whether or not the sheriff of Elkhart county and his deputies had authority to execute a search warrant (not otherwise challenged) which a justice of the peace had issued, upon the filing of a proper affidavit; the warrant being addressed "to the sheriff of Elkhart county or any constable of said county, or to the superintendent and any member of the Metropolitan police force of the city of Elkhart." Statutes then in force provided that search warrants for stills and distilling apparatus, kept for the manufacture of intoxicating liquor in violation of the laws of this state, and for intoxicating liquor being sold, etc., in violation of such laws, might be is-lant. sued by a justice of the peace, mayor, or Arthur L. Gilliom, Atty. Gen., for the State. For other cases see same topic and KEY-NUMBER in al' Key-Numbered Digests and Indexes Appeal from Jay Circuit Court. Williard Ferris, on appeal from a judg ment of the circuit court, petitions for certiorari to correct the transcript. Certiorari refused. Moran & Gillespie, of Portland, for appel |