176 N.W. 113 | N.D. | 1920
This is an appeal from an order denying a motion to dismiss receivership and contempt proceedings which was entered after a hearing upon an order to show cause why the defendant and appellant should not be punished for contempt. The facts necessary to an understanding of the case are as follows: On January 3, 1916,
On May 29th, upon an ex parte application of the plaintiff and solely upon the affidavit of the plaintiff’s attorney, together with the transcript and papers filed in justice court, an order was entered appointing a receiver to take possession of the property, collect rents, etc. It appears that the defendant did not heed the order appointing the receiver and comply with it by turning over possession, whereupon on June 18th, an order to show cause was issued directing the defendant to appear and show cause why she should not be punished for contempt. It appears that there was no hearing on this order, although a return was served on plaintiff’s counsel on the return day of the order in which it was asked that the order be vacated on the ground that the
The appellant complains of two provisions of the order: First, it is claimed that the court erred in denying the motion to dismiss the receivership and vacate the proceedings therein; second, that the court erred in ordering and adjudging the defendant to be guilty of contempt, imposing a fine of $5 and a suspended sentence of twenty days in jail, conditionel on the defendant refraining from further interference with the receiver.
From the affidavits and indorsements upon the contract it appears that the defendant, before the service of the notice, had paid about $2,000 and that she was making instalment payments of $50 a month prior to the service of the cancelation notice upon her, the last payment of $30 being made in August, 1918. As stated above, there was no acceleration clause in the contract, hence no foundation for the attempted exercise of an option to declare the1 entire balance due. The attempted cancelation, therefore, was not in accord with the statute, N. D. Sess. Laws 1917, chap. 151. It was needlessly and illegally oppressive. Since this is the foundation for the receivership proceedings, they should not be looked upon with great favor, and the fact that the appointment of the receiver was without notice to the defendant is one which greatly weakens the legal validity of the order. In Grandin v. LaBar, 2 N. D. 206, 50 N. W. 151, the correct rule applicable to such matters was stated as follows (page 215) : “It is doubtless true that receivers are sometimes — though very rarely — appointed ex parte. Our statute (Comp. Laws, § 5017) contemplates such a possibility. But to justify such a summary proceeding the facts and circumstances must create a very grave exigency. . . . In suits between conflicting claimants of land, especially between par
It does not follow, however, from the fact that the order was improvidently made that it was absolutely void. In fact the implication of the holding in Grandin v. LaBar, supra, is that jurisdiction exists in the district court for appointment of receivers ex parte in proper cases. To hold that an order improvidently issued can be violated with impunity is to invite litigants to resort to the use of force sufficient to maintain their rights as they understand them to be. Such a policy should not be adopted in a system of law that prides itself upon having a remedy for every wrong. Hence that portion of the order which adjudges the defendant guilty of contempt and imposes a fine of $5 is affirmed. That portion, however, which imposes a suspended jail sentence of twenty days must be reversed because it is conditioned upon her refraining from further interfering with the possession of the receiver. His possession must cease by virtue of the dismissal of the receivership proceedings.
The order of this court is that that portion of the order appealed from, which denies the defendant’s motion for a dismissal of the receivership proceedings be reversed, that the motion be allowed and the receivership proceedings dismissed, and that the portion adjudging the defendant guilty of contempt and fining her $5 be, and the same hereby is, affirmed. The appellant is entitled to recover costs on this appeal. -