Jumbo Mining Co. v. District Court of the First Judicial District, 28 Nev. 253

28 Nev. 253 | Nev. | 1905

Per Curiam:

In this proceeding this court, on the 23d day of November, 1904, issued a writ of certiorari directed to the above-named respondents, requiring that there, be certified to this court for review the proceedings had before the said Hon. M. A. Murphy, as Judge of the said First Judicial District Court of the State of Nevada in and for the County of Esmeralda, in a certain action pending in said court wherein John MeKane and George A. Kerniek were plaintiffs and C. D. Taylor, George E. McClelland, H. L. Taylor, C. P. Holt, Thos. Robinson, and the petitioner herein, the Jumbo Mining Company of Goldfield, were defendants, in which action petitioner herein alleged that certain orders made therein appointing a receiver for petitioner herein and issuing an injunction restraining certain of said defendants from performing certain acts relative to the management of the affairs of said defendant corporation, petitioner herein, were and are beyond the jurisdiction of said court, and therefore void. The writ was duly returned, and thereafter the legal questions involved were argued, and submitted to this court for its decision. Thereafter, information having come to the justices of this court that the trial court in the aforesaid action had already granted to the petitioner the relief prayed for in its petition, this court made an order directing the parties to this proceeding to appear at a time therein named to show cause why this proceeding should not be dismissed. Counsel for petitioner answered by filing a copy of the decision of Judge Murphy in said action, and also a copy of the return or final account of the said receiver, filed in pursuance of the said decision of Judge Murphy, together with a brief in opposition to a dismissal of this proceeding.

From the decision of Judge Murphy, filed by petitioner herein, we quote the following: "It is further ordered that the injunction heretofore issued against C. D. Taylor, H. L. Taylor, and George E. McClelland and the Jumbo Mining Company be dissolved. It is further ordered, adjudged, and decreed that within twenty days after the filing of this opinion John S. Cook, the receiver heretofore appointed by this court, pay all claims contracted by him as such receiver for and on behalf of the Jumbo Mining Company, and pay the same out of any money he may have in his possession belonging to the said Jumbo Mining Company; * * * that he shall also make out and file with the clerk of this court a true and correct account of his receipts and disbursements while acting as such receiver for said company, together with a claim for his own services to be presented and allowed by this court; that.he shall also pay out of the funds of the Jumbo Mining Company the costs in this court, and when he has complied with these orders, and his said account has been allowed and approved by this court, he will surrender to the Jumbo Mining Company all property belonging to said company of whatsoever kind and character the same may consist, taking its receipt therefor, and file the same in this court, and when so filed the said receiver shall be relieved from any further liability as such receiver, and his bondsmen be released from any further liability to be thereafter incurred.”

From the brief of petitioner filed in response to the order of this court we quote the following portions as showing the reasons contended for by counsel for petitioner why this court, regardless of the decision of Judge Murphy, should not dismiss this proceeding: "The question argued and submitted to this court was: Are the orders made and entered by the court of the first judicial district void by reason of the fact that they were made in excess of or without the jurisdiction of the court making them? We respectfully submit that nothing decided by the court touches that point. It is true that upon the final hearing, and after said receiver had possession and charge of the property of petitioner for a period of four months or thereabouts, the court did, upon rendering final judgment, discharge the receiver; but it was not upon the ground that he had no jurisdiction to appoint him, but for the reason that the alleged facts upon which he was appointed were not true, and were unfounded in fact. But that order discharging him was coupled with the order that petitioner, the Jumbo Mining Company, pay all the costs of the proceeding, which costs, including the receiver’s claim, greatly exceed $10,000. * * * The relief prayed for in the petition was that the order of the trial court be declared null and void, as having been made without and in excess of jurisdiction. The relief alleged to have been granted was the discharge of the receiver upon the grounds that the allegations of the pleading upon which he was appointed, and which was the foundation of his appointment, were untrue. But said order being on condition that the petitioner pay all the costs, not only of the proceedings but of the receiver also, the effect of such judgment is, 'I adjudge that you pay a certain sum of money as costs to the receiver, but I also discharge him,’ not set aside and dissolve the order appointing him.”

From the argument of counsel for petitioner it will be manifest that two reasons are urged why this court should not dismiss this proceeding, but should pass upon the merits of the questions originally presented. The first one is, in effect, that the lower court did not dissolve the injunction and discharge the receiver upon the ground of want of jurisdiction to make the orders, but because the alleged facts upon which the original orders were made were not sustained by the evidence; and, second, because the court, in discharging the said receiver, has imposed the burden of his fees upon petitioner herein, an innocent party. We think neither of these grounds affords a sufficient reason why this court should, in this extraordinary proceeding, now pass upon the questions argued upon the ‘ submission of this cause upon .its merits. The relief prayed for to the extent of dissolving the injunction and ordering the discharge of the receiver has been granted. Whether such relief was granted upon correct or erroneous grounds, so far as this proceeding is concerned, the effect is the same. (Conley v. Chedic, 6 Nev. 222.) Conceding, for the purposes of the argument, that the appointment of the receiver was in excess of the jurisdiction of the court, and therefore void, ought this court to determine that fact in this proceeding in order to pass upon the question of the receiver’s fees, claimed to be taxed as costs against petitioner? We think not. While it does not clearly appear from the decision of Judge Murphy that the fees of the receiver have been or are to be taxed against the petitioner, nevertheless, if they are, and the same is erroneous, the petitioner has a plain, speedy, and adequate remedy by appeal, for this court will modify or set aside void as well as erroneous judgments or orders upon the error being properly presented to this court. (Hastings v. Burning Moscow Co., 2 Nev. 97.)

For the reasons given, it is ordered and adjudged that the proceedings in this court be dismissed.