that large mortgages were made on property owned or controlled by officers of the bank, upon which the estate will suffer a loss of from 50 to 60 per cent.; that the directors of said bank are liable to the receiver for damages sustained by the bank in consequence of the negligence of said directors; that the petitioner, if permitted to intervene, will petition the receiver to bring actions in said cases. A demurrer to this petition was filed and withdrawn, and a motion to strike out the petition was then filed by the receiver, which motion was sustained. To this ruling appellant excepted, and prayed on appeal. This ruling is assigned as error in this court, and relied on for reversal. behalf of themselves as stockholders of such corporation. [2] These exceptional cases are those in which appears one or more of the following conditions: "(1) Some action, or threatened action, by the board of directors or trustees, beyond their power; (2) a fraudulent transaction, completed or contemplated by the acting managers, in connection with some other party or among themselves, causing injury to the corporation rectors, or a majority of them, in their own or stockholders; (3) action by the board of diinterest, and in a manner destructive of the corporation, or the rights of the other stockholders; (4) where a majority of the stockholders are illegally and oppressively pursuing a course in the name of the corporation, which is in violation of the right of the other stockholders, and can only be restrained by a court of equity." Tevis v. Hammersmith, 31 Ind. The ground upon which appellant predi-App. 281, 282, 66 N. E. 79, 80; and see cases cates his right to be made a party to this there cited; McFarland v. Pierce et al., 151 suit is the showing made in his petition that Ind. 546, 549, 45 N. E. 706, 47 N. E. 1. he is a stockholder of the insolvent corporation, the property and business of which is being managed, directed, and disposed of by said receiver under the orders of the court; that as such stockholder, he, in common with other stockholders, is directly affected by each and all the proceedings had or taken in said receivership proceeding, and hence entitled to be made a party thereto under section 273, Burns 1914. This statute provides as follows: "The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others or by saving their rights; but when a complete determination of the controversy cannot be had, without the presence of other parties, the court must cause them to be joined as proper parties. And when, in an action for the re covery of real or personal property, a person not a party to the action. but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be made a party by the proper amendment." There is no claim or showing made in said petition that appellant has any interest other than that of a stockholder, or that, as a stockholder, his interest is different from, or may be affected differently from, that of any other stockholder. He [3] It is further said in Tevis v. Hammersmith, supra, that in such cases the complaining stockholder— "must have had no share in the acts, nor have ratified them. He must bring his suit seasonably. He must show to the court that he has exhausted all the means within his reach to obtain redress within the corporation. must make a good faith and reasonable effort to induce the corporation to bring the suit itself. Hawes v. Oakland, 104 U. S. 450, 26 L. Ed. 827; Taylor v. Holmes, 127 U. S. 489, 8 Sup. Ct. 1192, 32 L. Ed. 179; Cook, Corp. (5th Ed.) § 740; Clark & Marshall, Priv. Corp. § 543. It is ordinarily necessary to show a demand upon the board of directors to bring suit, and a refusal upon their part; but the law does not require idle ceremonies, and when it is made to appear that a demand would have been unavailing, as when the corporation is under the control of the wrongdoers, 'in the hands of its enemies,' such facts are sufficient. Wayne Pike Co. v. Hammons, 129 Ind. 368 [27 N. E. 487]; Rogers v. La Fayette, etc., Works, 52 Ind. 296; Board, etc., v. La Fayette, etc., R. Co., 50 Ind. 85, 100; Carter v. Ford Plate Glass Co., 85 Ind. 180; Thompson, Corporations, § 741; Knoop v. Behmrich, 49 N. J. Eq. 82, 23 Atl. 118. The demand upon the board and its refusal to act are stated by an approved author 'material and issuable; if controverted, they must be proved. If proof of them fails, the whole foundation of the plaintiff's action is gone.' Pomeroy, Eq. Jurisp. § 1095." [4-6] Such being the rules governing stockholders of a corporation in bringing actions originally, for and on behalf of themselves, there would seem to be even more reason for their application where the corporation is insolvent and its affairs are being managed and settled through a receiver appointed by and acting under the direction and orders of [1] It follows that appellant, when he filed his petition, was, in a sense, already in court. That is to say, the corporation in which he is a stockholder was in court, and, generally speaking, the stockholders of a corporation, for the purposes of all litigation growing out of the relations between such corporation the court. and a third person, surrender their personal "When a court has taken possession of the or individual entity to the corporation in property of an insolvent corporation for adwhich they are stockholders, and when such ministration and appointed a receiver, the propcorporation is properly in court, the stock-erty of the corporation is a trust fund for the holders are, under the law, also in court, so far as is necessary for the purpose of adjudicating all matters incident to the issues tendered between such corporation and such other party or parties litigant. It is only in exceptional cases that stockholders will be permitted to sue or defend a suit for and on payment of its debts" (Franklin, etc., Bank v. Whitehead et al., 149 Ind. 560, 583, 49 N. E. 592, 599 [39 L. R. A. 725, 63 Am. St. Rep. 302] and cases there cited); and the receiver in such case "is not the agent or representative of either party to the action, but is uniformly regarded as an officer of the court, exercising his functions * * * for the common benefit of all parties in interest" (High on Receivers [4th Ed.] § 1). While for the purposes of determining the nature and extent of his title, such receiver represents the corporation itself, yet he represents both stockholders and creditors, and is to be regarded as their trustee, charged with the duties of collecting, assembling, protecting, and preserving the assets of such corporation for the benefit of those entitled thereto, subject, of course, to the orders and directions of the court whose officer he is. Voorhees v. Indianapolis, etc., Co., 140 Ind. 220, 39 N. E. 738; Big Creek, etc., Co. v. Seward, 144 Ind. 205, 42 N. E. 464, 43 N. E. 5; National, etc., Bank Co. v. Vigo, etc., Bank, 141 Ind. 352, 356, 40 N. E. 799, 50 Am. St. Rep. 330; Northwestern, etc., Co. v. Kidder, 162 Ind. 383, 390-392, 70 N. E. 489, 66 L. R. A. 89, 1 Ann. Cas. 509; Coddington v. Canaday, 157 Ind. 243, 255–257, 61 N. E. 567. [7] The receiver in such a case is the proper party to bring any action which the corporation might have brought, and, "as trustee for the creditors, can maintain actions which the corporation could Franklin, etc., Bank v. Whitehead, * not." supra, 149 Ind. 583, 584, 49 N. E. 599, 39 L. R. A. 725, 63 Am. St. Rep. 302, and cases there cited; Voorhees v. Indianapolis, etc., Co., supra, 140 Ind. 239, 39 N. E. 738. While our Supreme Court recognizes that a general creditor, by reason of his lien upon the property so held in trust by such receiver, "has the right to intervene and contest the validity as well as the priority of other claims or asserted liens" (Franklin, etc., Bank v. Whitehead, supra, and cases cited), yet such court has also frequently held that such receiver "represents the creditors, and has the exclusive right to recover and protect the assets of the corporation, and that such actions cannot be maintained by the creditors in their own names." Northwestern, etc., Co. v. Kidder, supra, 162 Ind. 391, 70 N. E. 492, 66 L. R. A. 89, 1 Ann. Cas. 509, and cases there cited. In the case of Voorhees v. Indianapolis, etc., Co., supra, where a creditor of the insolvent corporation attempted to intervene, the court used the following language, which we think pertinent and applicable to the peti tion under consideration: "The petition and proposed complaint, were nothing more nor less than a proposal on the part of the [petitioner] to usurp the functions of the receiver, or practically to appoint another receiver. The petitioner had no right to do this. Beach Rec. § 167." "All that is said in the petition against the receiver's conduct might be material to petition those facts do not justify supplanting him by to remove him and appoint a successor, but a person not a receiver. 20 Am. & Eng. Encyc. Law, 198-205, and authorities there cited." These cases, supra, seem to be conclusive as to the power and duty of the receiver to collect, protect, and preserve all the assets of the insolvent corporation for the benefit of those entitled thereto, including stockholders tain and defend all actions for or against as well as creditors, and to that end, to mainsuch corporation and where the interest of creditors requires, he may maintain and defend certain actions which the corporation itself could not. [8] It follows, we think, that in the absence of a showing of a refusal of the receiver to discharge his duty in the respects indicated, or some showing of collusion or fraud on his part, by which the court had been or was being misled and induced to act against, or to fail to act in, the interests of those for whom such corporate assets were held in trust, appellant was not a necessary party to said action, and hence not such a party as the first proviso of the statute quoted above requires should be made a party. There is no claim that the second proviso facts set up in said petition. of the statute has any application to the [9] The conclusion we have reached, we think, makes it proper to observe that in our its discretionary power, might, in certain judgment the trial court, in the exercise of cases, admit a stockholder to intervene, where its refusal to do so would not constitute reversible error under the statute, supra, and in this connection we may also add that notice by publication to the stockholders of prerequisite to the appointment of a receiver a bank, alleged to be insolvent, is a necessary for such bank (Burns 1914, § 3346), and we have no doubt but that after such bank has been thus brought into court and a general receiver appointed, with complete authority to take charge of the assets of such corpora, the stockholders and creditors, that either a tion, and manage and administer the same for stockholder, or a creditor who has established his claim, has such a standing in court that he may, on proper showing, ask and obtain from the court orders and directions on the receiver in furtherance of the interests of the stockholders and creditors, and if the receiver disobeys such orders, such stockholder or creditor may ask his removal by the court appointing him, and the refusal of such court to take such action as would protect all concerned would be ground for complaint in the appellate tribunal. Voorhees v. Indianapolis Car, etc., Co., supra. It appears from the record and appellant's If one creditor could do so, each one could, petition that the claims of the three banks, and the purposes and objects of a receiver- the allowance of which appellant, in his ed by the court upon the agreement of the parties, after it had heard the evidence and considered the petition and recommendation of compromise filed by the receiver, that appellant and another stockholder were present in court, and appellant was allowed to file objections to said petition, and excepted to the ruling on said objections, and asked an appeal therefrom. It appears, therefore, that as to such claims, appellant was given ample opportunity to interpose any objection or defense, and, if he had any valid defense to such allowances, he should have then presented it to the court and properly prosecuted his appeal from the ruling thereon. There is no charge in appellant's petition that the allowance of said claims, so made by the court, was induced by any fraud or collusion practiced upon the court by either the receiver or the claimants. [10] As to the other suits contemplated by appellant, his petition shows that they were suits, the bringing of which, under the authorities cited supra, properly fall within the powers and duties of the receiver, subject only to the orders and directions of the court in relation thereto, and there is no showing that the receiver had ever been asked to bring such suits, or that he had refused to bring them, or refused to ask and obtain the necessary orders and directions of the court in reference thereto. This court will assume, in the absence of a showing to the contrary, that the receiver has or will discharge his duties as such, and that the court under whose directions such receiver is acting will make all orders necessary upon the receiver to the full protection of the corporation and the interests of its shareholders and creditors. If, as appellant's brief seems to imply, there was collusion and fraud practiced upon the court in obtaining the allowance of the claims of the said banks, appellant should have so alleged in his petition, and if such be the fact, appellant and the other stockholders are not without a remedy. We find no error in the record, and the judgment of the trial court is therefore affirmed. (66 Ind. App. 509) appealed from, the appellate tribunal will look In determining who are parties to a judgment through the record to the pleadings, and, if necessary, to the summons. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3262; Dec. Dig. 837(1).J 3. APPEAL AND ERROR 327(7) SCOPE PARTIES-HOW DETERMINED. Where intervener by his petition made a company defendant and the record showed appearance for the company and for its receiver, intend to make it so save through its receiver, it was in fact a party, though intervener did not as indicated by absence of summons upon it, to which the court need not look, owing to the record showing. Error, Cent. Dig. 88 1814, 1818; Dec. Dig. 4. APPEAL AND ERROR 327(2) SCOPE The fact that no answer was filed by a com pany made defendant by the petition, but not not control the record or show that it was not served with summons, and which appeared, will a party. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1814, 1818; Dec. Dig. 327(2).] 5. APPEAL AND ERROR PARTIES. 327(2)—NECESSARY Since findings and conclusions of law are effective only when carried into the judgment, only parties to the judgment are necessary parties to the appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1795, 1814, 1831, 1834; Dec. Dig. 327(2).] 6. APPEAL AND ERROR 327(7)—NECESSARY take nothing, it was against him and in favor Where the judgment was that intervener of all defendants to his action, and they were all necessary parties to his appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1818; Dec. Dig. Om 7. APPEAL AND ERROR 327(2)—NECESSARY 327(7).] PARTIES. Where the judgment was that intervener him was in favor of only two of three defendtake nothing, but judgment for costs against ants, the judgment on the merits would control that for costs in determining who were necessary parties to the appeal, so that all three defendants were necessary parties. Error, Cent. Dig. 88, 1795, 1814, 1831, 1834; 8. APPEAL AND ERROR 882(4) PROPER SPANGLER v. SAVINGS LOAN & TRUST essary party, where intervener by his petition Regardless of whether a company was a nec CO. et al. (No. 9084.)* (Appellate Court of Indiana, Division No. 1. Nov. 24, 1916.) 1. APPEAL AND ERROR 1077 SCOPE WAIVER OF ERRORS JURISDICTIONAL DEFECTS. Where appellees, in asking an extension of time to file briefs, agree not to move to dismiss the appeal, they waive all errors within their power to waive, but do not confer on the court jurisdiction of a party not before it. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3135, 3136; Dec. Dig. 1077.j made it defendant, he could not thereafter be [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1870; Dec. Dig. 336(1).] Appeal from Circuit Court, De Kalb County; Frank M. Powers, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied. Transfer denied. plaint in said action brought by S., as in the judgment of the receiver's counsel may be necessary to quiet any title, legal or equitable, of the creamery company, and to enforce any claims which such company may have for specific performance of any contract with S. Suit by the Savings Loan & Trust Company against the Auburn Creamery Company, wherein Michael Boland was appointed receiver for defendant company, and petitioned for leave to sue or defend against W. W. Spangler, who claimed certain lands also claimed by the defendant company, and wherein said W. W. Spangler intervened, and This petition was examined and approved impleaded Isaac M. Lent, Thomas A. Carter, by the court. On January 26, 1914, appears and Simon Trovinger. Lent was defaulted, the following entry of the proceeding had and Carter and Trovinger filed an intervening in the receivership proceedings, to wit: cross-complaint. The causes in the intervention and cross-complaint were consolidated. From a judgment that intervener and crosscomplainants take nothing, Spangler alone appeals, making all parties appellees save the Creamery Company. Appeal dismissed. P. V. Hoffman and Willis Rhoads, both of Auburn, for appellant. James E. Pomeroy, Isaac M. Zent, and Link & Atkinson, all of Auburn, and Leonard, Rose & Zollars, of Ft. Wayne, for appellees. "Comes now William W. Spangler and files an intervening petition making the Savings Loan & Trust Company, Auburn Creamery Company, and Michael Boland its receiver, and Isaac M. Zent, Thomas A. Carter and Simon Trovinger parties, and a summons is now ordered issued for all of said defendants except Michael Boland, receiver of Auburn Creamery Company, returnable on the first day of March term, 1914, of this court. Which intervening petition is in these words as follows, to wit." (Our italics.) This petition bears the title of the original action, viz. "Savings Loan & Trust Co. v. Auburn Creamery Company," and alleges HOTTEL, P. J. On August 8, 1913, the that S., for his intervening petition in said Savings Loan & Trust Company, a corpora- action, "Complains of the Auburn Creamery tion engaged in the banking and trust com- Company and Michael Boland, its receiver, pany business, in the city of Auburn, Ind., and says that your intervening petitioner and hereinafter referred to as the "Trust is the owner in fee simple of," etc. (describing Company," brought suit against the Auburn said real estate); that the creamery company, Creamery Company, a corporation, hereinaft- through its receiver, Michael Boland, is asker referred to as the "Creamery Company," ing an order to sell said property for the purin which it sought to recover upon four notes pose of paying the debts of such company, and to foreclose a mortgage, given to secure and thereby casting a cloud on the title of S.; the same by the latter to the former com- that the trust company is claiming to have pany, and also asking for the appointment of a mortgage lien on said property executed by a receiver for the creamery company. On said creamery company; that such mortgage August 20, 1914, Michael Boland was ap- was not executed by the creamery company; pointed receiver, and the cause was continued that such company had no title to said real as to the foreclosure proceeding. On August estate, either legal or equitable, at the time 27th said receiver accepted said trust and fil- of or since the execution of said mortgage; ed his bond therein, which was approved by that Isaac M. Zent, Thomas A. Carter, and the court, whereupon said receiver filed a pe- Simon Trovinger claim an interest in said tition showing that the creamery plant, which property by virtue of a written contract behad been operated by said creamery company, tween them and S., which contract is void bewas abandoned, and asking an order of the cause of their failure to comply with the court authorizing him to rent the same, which terms thereof; that such contract casts a petition was granted and the receiver author- cloud upon the title of S.; that the creamery ized to rent said plant until the further order company, through and by virtue of such conof the court. On November 13, 1913, the re-tract, claims to be the equitable owner of ceiver filed a petition, in which he showed to the court that the said creamery company was the owner of the real estate on which its said plant was located in De Kalb county, Ind., de scribing it, the same being the real estate involved in said foreclosure suit. The petition also alleged that the receiver was in possession of said real estate; that one W. W. Spangler, the appellant, hereinafter referred to as "S.," asserts title to and claims to be the owner in fee simple thereof, and has instituted an action in the De Kalb circuit court against said creamery company and said receiver to quiet title thereto; that the claims of S. are unfounded, etc., and an order of said court is asked directing said receiver to institute action at law or suit in equity, ei said property, which claim is unfounded, etc. strained from selling said property, or setPrayer that the receiver be enjoined and reting up any title to it or right or lien upon it, and that said * * Zent, trust company, * Carter and Trovinger be made parties to this petition to answer concerning their interest in said property and for other proper relief. The entry of March 3, 1914, shows an appearance to the petition of S. by J. E. Pomeroy for Carter and Trovinger, service on Zent, and a default as to him, and the following further appearance: for the Savings Loan & Trust Company, Au"Come now Link and Atkinson and appear burn Creamery Company and receiver to the in A. Carter and Simon Trovinger have no title to "2. That the intervening petitioners Thomas or lien upon said real estate in controversy and set out, and should not recover upon their intervening petition herein. Carter and Trovinger filed an answer in fact and should not recover on his intervening general denial, and also a pleading designat-petition herein. ed an intervening cross-complaint, in which they allege that they and Zent, as trustees, own the equitable title to the real estate involved; that on April 21, 1909, they as trustees entered into a contract with S. for the purchase of said real estate, which contract is set out and made part of said cross-complaint; that they took possession of said real estate under said contract and made valuable and lasting improvements thereon; that they are, and at all times have been, ready and willing to perform their part of said contract, and are entitled to a deed to said real estate; that S. has refused and neglected to make such deed; that they are ready and willing to pay to S. whatever sum the court may find to be due to him; that their codefendants, S., the trust company, and the creamery company, by said receiver, are each claiming an interest in said land and asserting some title or lien adverse, etc., which are unfounded and without right. "3. That each of the intervening petitioners, William W. Spangler, Thomas A. Carter, and Simon Trovinger should take nothing by their petitions and actions herein. "4. That the Savings Loan & Trust Company, the Auburn Creamery Company, and Michael Boland, Receiver, should recover of said interveners, and petitioners their costs, made and taxed at dollars." (Our italics.) The judgment is as follows: creed by the court, upon the special findings of "It is therefore considered, adjudged, and defact and conclusions of law, that the intervener, William W. Spangler, take nothing by his action herein, and that the Savings Loan & Trust burn Creamery Company, recover of and from Company and Michael Boland, receiver of Ausaid intervener, William W. Spangler, their costs herein made and taxed at dollars. "It is further adjudged and decreed by the court that the defendants and cross-intervener Thomas A. Carter and Simon Trovinger take nothing by their cross-petition herein, and that the defendants, Savings Loan & Trust Company and Michael Boland, receiver of Auburn Creamery Company, recover of and from said defendants and cross-interveners Thomas A. Carter and Simon Trovinger their costs herein dollars." (Our italics.) made and taxed at Prayer for judgment for cross-complainants, that their title be quieted as against all claims and liens of S., and against said codefendants Savings Loan & Trust Company and the Auburn Creamery Company, by Michael Boland, receiver, that the court de- S. alone appeals and makes the trust comtermine the amount due S. from cross-com- pany, "Michael Boland, receiver of the Auplainants, and that, upon the payment of burn Creamery Company," Carter, Trovinger, such sum, S. be ordered to execute a deed to cross-complainants to said real estate, and upon his failure to do so, that a commissioner be appointed to execute such deed, etc. and Zent appellees. The Auburn Creamery Company is not made an appellee. The appeal is a vacation appeal, and it is suggested by those who are made appellees that such company is a necessary appellee, it in the assignment of errors deprives this court of jurisdiction of the appeal. In answer to this objection, appellant insists, in effect, that appellees are in no position to urge it, and that, in any event, the Auburn Creamery Company was not a necessary party below, and was not in fact a party defendant, and hence not a necessary appellee. [1] Appellant's first contention is based on S. filed an answer to said cross-complaint, admitting its allegations in so far as they and that appellant's failure to so include affect the rights of Trovinger, Carter, and Zent, as trustees in said contract, and alleging his willingness to convey said property to said parties upon the payment of said purchase money, and denying that said "Auburn Creamery Company or its receiver, Michael Boland," or the trust company have any interest in said property, Michael Boland, receiver of the creamery company, and the trust company, each appeared to said cross-the fact that appellees filed a petition asking complaint of Trovinger and Carter, and filed an answer to such cross-complaint, and to the intervening petition of S. Upon the motion of the receiver, the causes of action in said intervening petition of S., and said cross-complaint of Carter and Trovinger, were consolidated for the purposes of trial. S., the receiver, and said cross-complainants each respectively asked for a special finding of facts and conclusions of law. Whereupon the cause was submitted to the court for trial, and, after hearing the evidence, the court returned a special finding of facts. This finding is lengthy, and is not necessary to our disposition of the appeal. The conclusions of law are as follows: "1. That the intervening petitioner William W. Spangler has no title to or lien upon real estate described and set out in the findings of By an extension of time in which to file their |