86 P. 49 | Idaho | 1906
This is an original application made in this court for the appointment of a receiver pending an appeal and determination thereof. The original action out of which the application arises was commenced in the district court in and for Nez Perce county, for the foreclosure of a mortgage for $10,000 on a steamboat plying on the Snake river, known and registered as the “Mountain Gem.” The plaintiffs applied for the appointment of a receiver pending the action, and the application was granted by the district judge, and a receiver was accordingly appointed. Thereafter, the defendant, C. F. Allen, applied to the court for a dissolution of the order and discharge of the receiver, and after a hearing and the submission of various affidavits on behalf of both plaintiffs and defendants, the district judge made and entered an order discharging the receiver. The plaintiffs immediately filed and served their notice of appeal to the supreme court, and executed and filed an undertaking on such appeal. They thereafter caused a certi
The material facts necessary to an understanding of the issues presented here are as follows: The plaintiff, Eureka Mining, Smelting and Power Company, is a Washington corporation engaged in mining operations on the upper Snake river and somewhere above Lewiston, while the defendant, Lewiston Navigation Company, is an Idaho corporation, with its principal place of business at Lewiston, organized and existing for the purpose of constructing and operating boats on the Snake river. The navigation company appears to have constructed the “Mountain Gem” at an expense of some $30,000; $10,000 of this sum was loaned to the navigation company by various parties as follows: By the Eureka Mining, Smelting and Power Company, $7,328; by the plaintiff H. M. Peterson, $500.00; by the plaintiff J. A. Husebye, $172, and the balance of $2,000 by the defendant C. F. Allen. On January 27, 1904, the navigation company executed and delivered to the defendant C. F. Allen four promissory notes for the total sum of $10,000, one for the sum of $7,328, one for $500, one for $172, and one for $2,000, and at the same time executed and delivered to and in favor of Allen a mortgage on the “Mountain Gem,” apparently in conformity with maritime law, to secure the payment of these several notes. All of these notes were due and payable one year after date, and the mortgage contained the following stipulation: “But if default be made in such payments, or in any one of such payments, or if default be made in the prompt and faithful performance of any of the covenants herein contained, or if the said party of the second part shall at any time deem himself in danger of losing said debt, or any part thereof, by delaying the
This application appears to be based on two propositions: (1) That the mortgaged property has been removed out of the jurisdiction of the court; (2) That the mortgaged prop
On the second ground urged by the petitioners it is contended that the failure to insure amounts to a neglect on the part of the mortgagor to preserve the property and is in effect waste. It is argued that the failure to pay taxes and the necessary insurance to preserve and protect the property amounts in equity to waste, and in support of this position we are cited to Winkler v. Madgeburg, 76 N. W. 332. In that case the court said: ‘ ‘ The payment of taxes and the cost of insurance is necessary to preserve the property. Equity devolves it upon him who has the use. Not to pay them is waste.” It should be observed that in that case the mortgagor was insolvent, and had made an assignment for the benefit of his creditors, and that it was considered very doubtful by the trial court if the property was sufficient to pay the mortgage debt. It also appeared that Madgeburg, the assignee for the benefit of creditors, was receiving the rents
Again, it is urged by counsel for plaintiffs that the property has been removed from the jurisdiction of the state, and is in great danger of being destroyed on the rocks in the lower Snake river, and it is argued that either of these facts is sufficient to justify the appointment of a receiver. In the first place it is a matter of which we take judicial notice that the Snake river does not enter the state of Idaho at any point in the northern division thereof, and that its nearest approach is to mark the western boundary of the state. The vessel could not ply on the Snake river above Lewiston without being as often in the jurisdiction of Washington as in Idaho. It could not ply on the river below Lewiston without passing into the state of Washington and entirely beyond the jurisdiction of this state. These facts were known to all of the parties at the time of the execution of the mortgage, and it was provided in the mortgage that the vessel should never be taken “beyond the limits of the United States,” which was itself a recognition of the fact that it would necessarily have to be taken beyond the jurisdiction of Idaho. While the lease provided that the lessee should “run said boat for the development of the upper Snake river country,”