McClure v. McGee, 128 Ky. 464

McClure v. McGee

128 Ky. 464 | Ky. Ct. App. | 1908

Opinion op the Court by

Judge Hobson

Reversing.

William. McGee brought this action, charging in his petition that he was- the owner of a tract of land therein described; that John, James, Brett, and Sherman Jude had forcibly and without fight entered on it, and cut and removed 200 poplar saw logs belonging to him, which they had sold to T. S. McClure; that McClure had placed his brand upon them, and unless prevented by the court would remove the timber, which was then lying in a fork of Wolf creek and above a splashdam; that the Judes were insolvent; and that the timber was of value $500, and was in danger of being lost. On motion of the plaintiff, an order placing the logs in the hands of a receiver was made. McClure, who had no notice of the motion for a receiver, although made a defendant to the action, appeared, filed his answer, and entered a motion to set aside the order appointing a receiver. In his answer be charged that McGee had no title to the timber, and that he had bought it, and the plaintiff had stood by and allowed him to pay for it, without making known his objections, and this he relied on as an estoppel. He also pleaded affirmatively that he was solvent, and that there was no danger of any loss to the plaintiff from the removal of the timber. The court overruled his motion to set aside the order appointing a receiver, and McClure appeals.

Section 298 of the Civil Code of Practice is as follows: “On motion of any party to an action who *466shows that he has, or probably has, a right to, a lien upon, or an interest in, any property or fund, the right to which is involved in the action, and that the property or fund is in danger of being lost, removed or materially injured, the court, or the judge thereof during vacation, may appoint a receiver to take charge of the property or fund during the pendency of the action, and may order and coerce the delivery of it to him. The order of a court, or of the judge thereof, appointing or refusing to appoint a receiver, shall be deemed a final order for the purpose of an appeal to the Court of Appeals. Provided, That such order shall not be superseded. ” It is insisted for the appellee that the petition shows that McGee has a right to the property involved in the action, that the property is in danger of being' lost or removed, and that the petition on its face brings the case literally within the provisions of the section. The section is to be read, however, in connection with other sections of the Code, and in view of the settled practice in equity at the'time the Code was adopted. The language of the Code is not that a receiver must be appointed, but that he may be appointed. “May” here is not equivalent to “must.” Whether the court will in any case appoint a receiver has always rested in the discretion of the chancellor. L. & N. R. R. Co. v. Eakin, 100 Ky. 745, 19 Ky. Law Rep. 54, 39 S. W. 416. But the discretion of the chancellor in a case of this sort is not unlimited. The character of the case in which the discretion may be exercised has been defined by a long line of authorities. In High on Receivers, section 10, the rule is thus stated: “A receiver being appointed by a court of equity in the exercise of its extraordinary jurisdiction, applications for the relief are governed by many of the principles which control the court in admin is*467tering the extraordinary remedy of an injunction. And it is is always a sufficient objection, to the granting of an injunction that the person aggrieved has a full and adequate remedy at' law, so courts of equity will not lend their aid by the appointment of receivers where the persons seeking the relief have ample redress by the usual course of proceedings at law, or where the law affords any other safe or expedient remedy.” See, also, 17 Cyc. Pleading & Practice, p. 728; Harmon v. Ky. Coal Co. (Ky.), 21 S. W. 1054, 15 Ky. Law Rep. 12; Collins v. Richart, 14 Bush 621.

Under sections 180-184, the plaintiff in an action to recover the possession of personal property may sue out an order of delivery and have the property delivered to him upon the execution of the proper bond. By section 249, the plaintiff may have a specific attachment for the property upon execution of the proper bond, and under section 272 he can obtain an injunction restraining the defendant from injuring or removing the property pending the action, upon executing the proper bond. The order for a receiver is made without any bond, and, if the practice followed in this case is approved, an insolvent plaintiff may take possession of thé property in contest in all suits of this character and thus do the defendant great injury for which there would be no remedy. It was not the purpose of section 298 to provide that in all eases a receiver might be appointed where the plaintiff showed that he was entitled to the property, and that it was in danger of being lost. The appointment of a receiver is an extraordinary remedy, and to obtain this extraordinary remedy it must be shown that the defendant is insolvent, or that some other reason exists rendering the other remedies referred' to inadequate. Were the rule otherwise, the remdies pro*468vided by the Code by claim and delivery and by special attachment would be practically useless. Holmes v. Stix, 104 Ky. 351, 47 S. W. 243, 20 Ky. Law Rep. 593; Tarvin v. Coke Co., 109 Ky. 579, 60 S. W. 185.

Judgment reversed, and cause remanded, with directions to the circuit court to set aside the order appointing the receiver.