59 Iowa 307 | Iowa | 1882
The defendant, Bird, insists that the plaintiff is not within the provision of this statute for various reasons. In the first place he insists that to justify the appointment of a receiver of property there must be an action in which the right to such property is drawn in controversy, and he insists that it is not sufficient that there should be an action in form where the applicant for a receiver is plaintiff, but it should appear from the petition that the plaintiff has a right of action.
This action was brought to foreclose a chattle mortgage, and the defendant Bird contends that the petition does .not show a right to foreclosure, and hence does not show a right of action, and that such being the case the right to the, property is in no proper sense drawn in controversy. His position in this respect is based upon the. fact that it appears affirmatively not only that the secured debt was not due, but that the plaintiff was in possession of the goods, and no one was disputing his right of .possession, at least, so far as the petition shows. And while it is true that the plaintiff had been garnished, yet the defendant, Bird, insists that that fact did not give the plaintiff a right of action against the garnishing creditors. And while it is also true that some of the creditors had levied upon the goods, and the plaintiff had replevied them, and the right of property was drawn in controversy as between the plaintiff and those creditors, yet it is
It is not to be denied, we think, that there is much force in these positions, and possibly we might conclude that the appellant ought to be sustained, but for a fact which remains to be stated. The appellee’s mortgage contains a provision that he might take possession whenever he should choose to do so, and sell the goods at public auction, or so much thereof as should be sufficient to pay the amount due, or to become dtie, as the case might be, with all reasonable costs pertaining to the taking, keeping,, advertising, and selling the said property. The design evidently was not only to give the appellee a right to take possession whenever he should deem it desirable to do so for his better protection, but to give him a right also to an immediate foreclosure in case he should elect to take possession. The property was of a kind that could not properly be locked up and kept out of market.
Now, while the plaintiff might have foreclosed without action, it was his right to foreclose by action, and we think that he was entitled to have a receiver who should proceed without delay to sell the goods in the ordinary course of trade. The petition shows, and it would perhaps be apparent without such showing, that a stock consisting of dry goods and notions must be sold in its season, and that to take the same out of market even for a short time, and interrupt the customary patronage of the store, would probably involve loss.
The appellant does not contend that it would be for the interest of any one that the store should he closed, the goods restored to the plaintiff, and held by him until the maturity of the debt, nor does he contend that it would he for the interest of any one that they should be advertised and sold at a forced sale. The stock, it appears, was a very large one, and we can easily conceive that the market might be such that if the stock was to be forced upon it, it was better to first re
In our opinion the court did not err in overruling the appellant’s motion to set aside the order of appointment.
Arrirmeu.