21 S.D. 484 | S.D. | 1907
This action was instituted by a stockholder of the First State Bank, a domestic corporation, on March 14, 1904, to have such corporation declared insolvent and a receiver appointed. All proceedings were by default until January 20, 1905, when the apppellants, certain nonresident sockholders, moved the court “to vacate and set aside the sale of the assets of said defendant corporation, and each and every item thereof, as contained in a certain report made by said receiver and filed August 3, 1904; also, that the order of said court entered in the above entitled cause, dated July 30, 1904, and filed August 3, 1904, approving and confirming said sale, be vacated and set aside; also> that the order entered in the above entitled cause, dated July 30 ,1904, and filed August 3, 1904, approving and confirming the sale of the real estate in said order described, be vacated and set aside; also, that the order of said, court finding a deficit of $15,000, and directing the receiver to bring suit against certain stockholders in said order specified, dated July 30, 1904, and filed August 3, 1904, be vacated and set aside; also, that the order entered in said cause authorizing said receiver to sell certain real estate therein specified conveyed to him by-Carl Jackson, at private sale, dated July 30, 1904, and filed August 3, 1904, be vacated and set aside; also, that the order entered in said cause confirming and approving the sale of certain real estate, therein described,' at private sale, to the Ware & Griffin Bank, dated August 10, 1904, and filed August 12,-1904, be vacated, and set aside;-and, also; that the said Fred Ware, receiver of said bank, be removed from his office as such receiver, and some competent and discreet person appointed in his place, for the reasons set forth in the affidavits of said parties -hereto annexed.” Upon the hearing of this motion, numerous affidavits were read in support of and in opposition thereto, and the court made an order denying the same without prejudice to
Neither appellants’ notice of motion nor application specified any grounds for the relief sought. The court was asked to vacate orders previously entered in the ordinary course of a litigation, of which it clearly had jurisdiction, “for the reasons set forth m the affidavits” of the applicants for such relief. Nowhere in the voluminous affidavits referred to aire the grounds for the application specified. An application for any order should clearly and distinctly state the reasons or grounds upon which it is based, that the trial court may be advised of the issues involved, that the opposing party may be advised of the issues he is required to meet, and that the appellate court may know that it is not called upon to review issues not presented to the trial court. But this objection was not made to the moving papers, and should be regarded as having been waived by the receiver. It was disclosed that the receiver, soon after his appointment, became interested (to what extent did not appear) in the Ware & Griffin Bank, which purchased or assumed nearly all of the state bank’s debts, and to which a large portion of the latter’s assets were sold pursuant to an order of court, after notice by publication in a newspaper published at Clark, in this state, where both banks were located. The purchase or assumption of the insolvent bank’s debts was known to and acquiesced in by the appellants. So the only substantial objection to the conduct of the receiver related to the sale of the assets. While ordinarily a receiver, from considerations of public policy, is prohibited from purchasing any portion of the trust property, it does not necessarily follow that all sales in which a receiver is interested, as a purchaser, should be vacated. Though a sale by a trustee of trust property to himself may be presumptively irregular, the presumption is not conclusive. Such a sale is not per se void. It is simply voidable at the election
Touching these issues, the evidence was conflicting and no findings were made, the trial court, in effect, declining to determine the same upon ex parte affidavits, but without prejudice to a second proceeding for the same purpose, upon complance with the'conditions mentioned in the order appealed from. Did the court err in declining to rule directly upon the motion? The practiice of granting relief in cases of this nature by summary application upon motion may be fully established. Undoubtedly the court may, and ordinarily should, try and determine all the issues, both of law and fact, arising upon any motion. Still in cases of doubt and difficulty, where the court is called upon to weigh contradictory testimony and determine the credibility of witnesses, it may, in
The cause will be remanded, with directions to modify as indicated herein. In view of the substantial nature of this modification, appellants will be awarded usual costs and disbursements.