25 Wash. 105 | Wash. | 1901
In December, 1893, and for some time prior thereto, Alfred Mosher, Sr., Alfred Mosher, Jr., and W. A. McDonald composed a partnership doing business under the firm name and style of Mosher & McDonald. The business of the firm was mainly confined to logging in the state of Washington, and was conducted upon a somewhat extensive scale. The two Moshers resided at Bay City, in the state of Michigan; and McDonald,, the remaining member of the firm, resided in the state of Washington, and was charged with the immediate management and control of the details of the firm’s business, —the principal business office of the firm being located in the city of Seattle, in said state. The Moshers were men of reputed wealth; they were, at least, able to control large amounts of capital in connection with the logging business of the firm of Mosher & McDonald in the state of Washington, as well as in other extensive logging and lumbering operations of their own in the state of Michigan. Their investment in the business of the firm of Mosher
Many assignments of error are urged by appellant, chief of which is that the court erred in sustaining respondent’s challenge to' the evidence, and in taking the cause from the jury. We do not, however, deem it necessary to discuss the various assignments of error, for the reason that we believe an analysis of the one above mentioned must determine this case. We believe the eourt erred in overruling respondent’s demurrer to the complaint. The claims sought to be established were based
In an action to recover damages for a tort committed by a corporation prior to tbe appointment of a receiver, tbe receiver is not a proper party. Northern Pacific R. R. Co. v. Heflin, 83 Fed. 93.
Tbe opjnion in tbe above case, on page 91, states:
“Even in respect to contracts entered into by tbe corporation prior to tbe receivership, tbe rule seems to be settled that receivers are not liable thereon unless they adopt or ratify such contract.”
A number of cases are cited in support of tbe above statement.
“Tbe circuit court below seems to have been of opinion that, wherever a receiver is appointed over tbe property*110 of a debtor, tbe appointment instantly abates all personal actions pending against Mm, and vests all the rights of all his creditors in the receiver, who thereafter alone has authority to bring suits to enforce them, without regard to the character of those rights. A receiver is merely an officer of the court appointing him, to hold possession of property until the rights of the parties to the suit in which he is appointed can be determined. He represents neither of the parties to the suit, nor any one else, and has - only such powers as the court may confer upon him. And in reference to the actions already begun, as in this case, the receiver has no status in court until he has made himself a party upon an application made by him.” Wiley v. New Orleans, 87 Fed. 843, 848.
The same principle is generally discussed and sustained in the case of Decker v. Gardner, 124 N. T. 334 (26 N. E. 814, 11 L. R. A. 480):
“The complaint does not ask any judgment against the trust company, or show any reason for making it a party to the suit, beyond the mere statement that it has been appointed receiver of the Suffolk Bank. It may be that the rights and obligations flowing from this make it proper or necessary to sue the receiver with, or instead of the bank, but there must be some right to relief from the receiver stated, and some relief prayed. The mere fact that A. is the assignee or the receiver of B., whether these be natural or artificial persons, will not justify a creditor of B., in bringing A. as a party into every suit against B., or where the rights and the remedies of the plaintiff, so far as appears, end with B., and the assignee or receiver is not to be affected by the suit, nor to be adjudged or compelled to do anything for the relief of the plaintiff. I do not see that the plaintiff here shows any right to maintain this action against the trust company, or that he can be permitted to sue that company and put it to a defense, when no claim whatever is made against it. This is not an action affecting real estate, in which the trust company has an interest that is to be foreclosed. It is simply an action on a money demand, and no demand*111 is made, or cause of action shown, against the trust company. As to the company, the complaint should have been dismissed.” Arnold v. Suffolk Bank, 27 Barb. 424, 426.
The above authorities go to the extent of holding that a receiver, under the circumstances of this case, is not a proper party. In Denny v. Cole, 22 Wash. 372 (61 Pac. 38, 79 Am. Rep. 940), a partnership had pledged certain shares of stock which belonged to the firm, and a receiver was afterwards appointed for the partnership; and it was held that in an action to foreclose the lien of the pledgee, the receiver was a necessary party, in connection with the partners themselves. The rule there announced is undoubtedly correct, where it is sought to enforce any kind of lien against specific property, either real or personal. The receiver has such an interest in all the property of the partnership as makes it necessary that he should in such a case be made a party by reason of his successorship to the equity of redemption, and to any surplus of purchase money realized at the lien sale. But even in that case, the partners are necessary co-parties with the receiver. Here it is sought to enforce a bare unliquidated claim arising out of a partnership contract before the appointment of a receiver, and we do not see that the receiver has any interest in it until the claim may have been first adjudicated as a liability of the partnership; and then his duty would be simply to see that a judgment thereon shares pro rata with other claims from the property of the partnership, when the claim has been properly presented to him. He should not be put to the trouble and expense of defending such an action unless he believes it to be to the interest of creditors that he shall do so, in which case we have no doubt that he might intervene under our statute. In Denny v. Cole, supra, (page 378), the court uses the following language:
*112 “It would seem to be hard to reconcile these principles with the doctrine that a receiver is only the custodian of the property involved in the receivership, and we think it must be held that he has such a special property therein as to make him the representative of the rights of the partners in all actions or proceedings affecting the property, and as such entitled to notice in all cases where the partners would have been entitled to notice had there been no receiver.”
The above statement, however, relates only to the class of cases then under consideration, viz., all cases “affecting the property,” as in the case of liens and mortgages.
For these reasons, we think the demurrer to the complaint should have been sustained; and inasmuch as the action of the lower court in sustaining the challenge to the legal sufficiency of the evidence, and in entering judgment of dismissal, effected the same result as a judgment upon the demurrer, the judgment is affirmed.