15 S.D. 247 | S.D. | 1901
An order to show cause why a writ of prohibition should not be issued by this court restraining further proceedings in an action pending in the circuit court within and for Custer county having been issued and served, defendants appeared by counsel, and demurred to plaintiff’s application on the ground that it does not state facts sufficient to warrant the issuance of the writ. No objection having been raised to the form of the return, the matter will be considered as an application upon notice for a peremptory writ of prohibition to which the defendants have answered without raising any issue of fact affecting the substantial rights of the parties. Therefore the facts disclosed by the application will, for the purposes of this proceeding, be taken as true. Such as are deemed essential to an understanding of the legal propositions to be discussed may be stated as follows: The Crown Hill Mining Company is a corporation created by and existing under the laws of'this state. On March 19, 1901, an action was commenced in the circuit court within and for Minnehaha county by a stockholder to have the corporation adjudged insolvent, and a receiver appointed. The summons and complaint were served upon the secretary of the corporation in Minnehaha county, where he then resided. The corporation appeared by counsel, and such proceedings were had that on March 20, 1901, a judgment or order was entered wherein it was ordered, adjudged and decreed that the corporation is insolvent; that H. N. Gates (the plaintiff in this proceeding) be appointed receiver of the corporation and of all its property and assets,, with the usual powers of receivers in such cases; that the receiver may, from time to time, apply to the court for such other and further powers or authority as may be necessary for the carrying out of his duties, and that such powers and .authority may be granted by supplemental judgments and decrees; that the officers,
It is contended by the defendants that Gates’ appointment is void because the court was without jurisdiction to -appoint a receiver of a corporation or dissolve a corporation at the suit of a stockholder. This contention is not supported by the decision in Dudley v. Hot Springs Co., 11 S. D. 559, 79 N. W. 839. In that case it affirmatively appeared that the corporation was solvent. Here it appears from the showing of both parties that the corporation is insolvent. It was so alleged in the complaint and found by the court in the Minnehaha county action. Authority to appoint a receiver in cases where a corporation is insolvent is expressly conferred by the statute. Comp. Daws, § 5015. The judgment or order appointing Gates does not purport to dissolve the corporation. The court in Minnehaha county has, in effect, done nothing more than has the court in Custer county. If one has exceeded its jurisdiction, so has the other. Being clothed with power to appoint receivers in cases where corporations are insolvent, the Minnehaha court was authorized to hear and determine the question of solvency, and, though it may have erred in its decision, it certainly has jurisdiction of the subject matter.
It is further contended by the defendants that the judgment or order appointing Gates was procured through fraud and collusion ; that the second action was properly brought in Custer county, and could not have been properly brought elsewhere execpt in Dawrence county, because it is an action affecting real estate; that the plaintiff in this proceeding having demurred and answered to the merits in that action, his application for prohibition comes too late.
As the plaintiff in this proceeding did not waive his right to have the rulings of the circuit court on his demurrer and motion to dissolve the temporary injunction reviewed upon appeal by answering to the merits, he is not precluded from having those rulings corrected by means of the writ of prohibition. Prohibition is the counterpart of mandamus. Comp. Laws, § 5530. The constitutional powers of this court to control and correct the decisions of inferior courts in special cases by means of prerogative and remedial writs have been heretofore considered. The case at bar falls clearly within the reasoning of our former decisions. Vine v. Jones, supra; City of Huron v. Campbell, 3 S. D. 309, 53 N. W. 182.
The circuit court within and for Custer county should be prohibited from proceeding further in the action now pending in that court, its injunction should be dissolved, its order appointing a receiver should be vacated, and the action itself should be dismissed. .