83 P. 954 | Idaho | 1905
(After making the statement of facts.)— Keane and the California Consolidated Mining Company were total strangers to the case of Kerns, Receiver, v. McAulay and DeLashmutt, and to recognize their right, or that of any other stranger to the proceeding, to come in by petition or otherwise, without notice to the receiver or anyone interested in the proceeding, and procure an ex parte order, like the one of January 7th, affecting the entire assets of the insolvent estate, would be permitting a practice contrary to every principle of law and justice, and too dangerous to be tolerated for a moment. The petitioner had no standing in the proceeding and could not rightfully obtain a standing without notice and an order of court allowing him to become a party or to intervene. The receiver acting under direction and authority of the court is the legal representative of the insolvent bank, and as such is the party whose duty it is to know the condition of the business and affairs of the insolvent estate. He is presumed to be better informed as to the debts and liabilities outstanding against the insolvent estate and the orders and judgments necessary for its protection than a mere intruder and interloper whose petition shows upon its face that his entire interest is personal and private and adverse to the
We conclude that the order of January 7th was unauthorized and void, and the court had the power to vacate and set aside such order on his own motion or at the instance of any person affected thereby at any time the matter might be called to his attention.
Passing now to a consideration of the order of October 6th, we find that the effect thereof is to enjoin the collection of this $58,000 judgment or any part thereof out of the thirteen-sixteenths interest in the California lode claim until such time as the case of the California Consolidated Min. Co. v. Manley et al. shall be again heard and finally determined in this court on appeal. There has been no pretense made at giving a supersedeas bond in the appealed case on the writ of error from the United States supreme court to this court as provided by section 1007 of the United States Compiled Statutes, and that question does not therefore enter into the consideration of the present case.
In the California Consolidated ease the trial court held that the plaintiff was an innocent purchaser of the thirteen-sixteenths interest in the California lode claim, and entered a decree perpetually enjoining and restraining a sale thereof under execution issued in the case of Kerns, Receiver, v. McAulay and DeLashmutt. On appeal this court held that "the California Consolidated Company was not an innocent purchaser, but that the sale had been made in fraud of the creditors of the Coeur d’Alene Bank, insolvent, of which Kerns is receiver. The judgment and mandate of this court was as follows: “The perpetual injunction is dissolved, and the cause
The writ issued on application of the California Consolidated Mining Company to review the action of the district judge in making the order of August 1st is quashed.
The order made by the district judge October 6th, recalling the execution in case of Kerns, Receiver, v. McAulay and DeLashmutt, is hereby annulled and vacated. Costs incurred in both these cases are awarded in favor of the receiver and