2 Nev. 313 | Nev. | 1866
Opinion by
This case comes before this Court upon a writ of certiorari issued to the District Court of the County of Ormsby, the defendants claiming that the Court below had exceeded its jurisdiction in the appointment of a receiver of certain property and business in which all the parties to the action seem to claim some interest.
Section 403 of the Civil Practice Act of this State, provides that “ this writ may be granted on application by any Court of this State, except a Justice’s Court, in all cases where an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor in the judgment of the Court any other plain,.speedy and adequate remedy;” and Section 409 of the same Act declares that “ the review upon the writ shall not be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer.” Evidently, the only question which can properly be inquired into upon this writ, is that of jurisdiction.
If it appear that the jurisdiction of such tribunal, board, or officer has not been, exceeded, there is no foundation for the writ.
Section 143 of the Practice Act, which reads as follows, expressly gives the District Court the power to appoint a receiver in certain cases: “ A receiver may be appointed by the Court in which the action is pending, or by a Judge thereof. First, before judgment, provisionally, on the application of either party when he establishes a prima facie right to the property, or to an interest in the property which is the subject of the action, and which is in possession of an adverse party, and the property or its rents and profits are in danger of being lost or materially injured or impaired. Secondly, after judgment, to dispose of the property according to the judgment or to preserve it during the pendency of an appeal; and thirdly, in such other cases as are in accordance with the practice of Courts of Equity jurisdiction.” .
This section, it seems to us, settles the question of the power of the Court to appoint a receiver in proper cases, and the complaint as clearly makes out a case in which the relief claimed by the plaintiff could not properly be refused. The bill or complaint contains substantially the following allegations : That in the month of July, a.d. 1864, the defendant Isaac Railey, and one J. Neely Johnson, both of the County of Ormsby and State of Nevada, formed and entered into a copartnership for the purpose of erecting a quartz mill in said county for crushing and reducing gold and silver-bearing rock, and extracting therefrom the precious metals; that the copartnership thus formed transacted their business under the firm name of Johnson & Railey; that two hundred acres of land which were necessary .to the convenient working of the quartz mill were purchased, and the mill erected thereon; that the co-
Upon a sworn complaint containing these allegations, the Court beloAY made an order appointing one Thomas Gr. Taylor receiver of
In partnership cases where all the partners have an equal right, not only in the conduct of business, but also in its settlement after dissolution, a failure to agree among themselves, or the refusal of one partner to allow the other to participate either in conducting or the settlement of the business, obviously presents a case for the appointment of a disinterested party under the direction of the Court to close up the business and protect the property. When the conduct of one partner is incompatible with the relations of the copartnership, and is likely to result in loss or injury to any of his copartners, it has been the invariable practice of Courts of Equity, upon the application of any of the partners, to dissolve the partnership and appoint a receiver. “ Where,” says Mr. Edwards, “ either partner has a right to dissolve the partnership, and the agreement between the parties makes no provision for closing up the concern, it is a matter of course to appoint a manager or receiver on a bill filed for that purpose, if they cannot arrange the matter between themselves.” (Edwards on Receivers, 309.) A receiver will be appointed to settle up the business when it is shown that the surviving partner is insolvent, dishonest, or is not a fit person to close up the affairs of the partnership. (Id.)
Where two members of a partnership obtained a renewed lease of the partnership premises, and the administratrix of a deceased partner showed a prima facie title to participate in the benefits of it, a receiver was appointed to protect the property until the rights of the parties could be determined. (Id. page 310.) So upon a bill filed by the assignees of a bankrupt partner against the solvent partners, praying for the sale of the partnership effects, a division of the proceeds, and for a receiver, Lord Eldon decreed according to the prayer of the bill. “ The consequence is,” said his Lordship, “that the assignees of the bankrupt partner are become quoad, his interest tenants in common with the solvent partners ;
“ Each partner has an equal right in this case to the possession and control of the partnership effects and business, and if they cannot agree among themselves, it is a matter of course to appoint a receiver upon a bill filed to close the partnership concerns on the application of either party.”
These authorities clearly sustain the plaintiff’s right to the appointment of a receiver upon the case made out in his complaint. Hence we have shown that the Court below not only had the power to appoint a receiver, but that the case made out by the bill fully warranted the exercise of that power. But it is claimed the Court had no jurisdiction to appoint a receiver at the time it did, because summons had not been served on the defendants, and no notice of the application given to them. An action had, however, been commenced, and summons had been issued when the receiver was appointed by the Court, and it had full jurisdiction of the subject matter. The very reason why a Court of Equity interposes in cases of this character is to prevent the mischiefs which might result from the tardy remedy of the Courts of law. It is a familiar rule that equity will always lend its aid where the remedy in the Courts of law is not adequate, or the delay in obtaining it is likely to result in injury or damage to the party seeking its aid. If a Court of Equity could make no order of the character made in this ease until the service of summons on the parties to be affected by it, or until it was shown that they were purposely avoiding its service, equity would be shorn of half its efficacy. Many of the summary remedies which it affords are merely preventive, employed for the purpose of protecting a party from a threatened injury, but which, in many cases, would be utterly nugatory if the Court were not permitted to employ it until after the summons or notice. If the parties to be affected by the appointment of a receiver were beyond the jurisdiction of the Court, so that service of the summons could only be obtained by means of its publication, all the property sought to be protected by his appointment might possibly be wasted or destroyed, and the Court would thereby fail to grant that protection or relief which, by the clearest principles of justice, ought to be awarded. The power exercised by the Court in the appoint
A receiver should not be appointed ex parte except in cases where it is clearly shown that the delay which would result from the giving of notice would defeat the rights of the complainant, or result in great injury to him. Cases may unquestionably arise where an immediate and ex parte appointment of a receiver would be necessaiy to afford the plaintiff that protection to which he may be justly entitled. This case does not, however, present any such pressing necessity, and we think notice should have been given; yet as the order has been made, it should be allowed to stand until the defendant show cause why it should be set aside.
The order of the Court below is affirmed.