250 F. 614 | 9th Cir. | 1918
(after stating the facts as above).
It may be conceded that the appellant presented to the court below a strong prima facie showing of fraud in the manner of the appellee’s acquisition of the property of the Dredging Company, and of notice to the appellee of the fraud; but that was not all that was necessary to show in order to entitle the appellant to the appointment of a receiver. It was required to go further, and show the necessity of the .appointment for its protection while the suit was pending in the court below. To establish the necessity of the appointment of a receiver in an equitable suit such as this, it must be shown by clear proof that there is imminent danger that, unless a receiver is appointed, the property involved will deteriorate in value or be wasted, and that the plaintiff will thereby suffer irreparable loss. And there can be no irreparable loss if the defendant is solvent and able to satisfy the plaintiff’s demand. International Trust Co. v. Decker Bros., 152 F. 78, 81 C.
Again, in order to prevail on this appeal, the appellant must show that it was entitled to the appointment of a receiver as a matter of law, and that the court below grossly abused its discretion in denying it. Briggs v. Neal, 120 F. 224, 56 C.C.A. 572; Heinze v. Butte & Boston Consol. Min. Co., 126 F. 1, 11, 61 C.C.A. 63; American Grain Separator Co. v. Twin City Separator Co., 202 F. 202, 120 C.C.A. 644. In this case there was clearly no abuse of discretion in denying the appointment.
On the hearing it was shown that the capital stock of the appellee is $10,000,000, of which $2,000 has been paid in money and $3,701,820 was claimed to have been paid in property; that the assets were $2,000,000, consisting of certain mining claims, a power plant, and dredges; that the liabilities were $406,000, of which $300,000 was secured by mortgages on the property. A mining engineer in the employment of the appellee deposed that large sums of money had been Expended in repairing and fitting up the dredges which had formerly belonged to the Dredging Company, and that as so repaired the same, together with the power plant, were worth $565,000, and that the appellee was employing from 30 to 50 men daily. There was no convincing showing that the appellee’s mining operations were likely to diminish to any considerable extent the value of the mining claims pending the suit. The court below considered and weighed the proofs for and against the application, and reached the conclusion that the assets of the appellee were considerably in excess of its liabilities, that the appellee was a going concern, and that its assets were not in danger of loss from neglect, waste, or insolvency.
The order is affirmed.
