13 Mont. 143 | Mont. | 1893
The grounds upon which appellants contend the injunction should be dissolved are: 1. That the complaint does not state facts sufficient to warrant the granting of an injunction; 2. That the complaint does not show that plaintiff would suffer great or irreparable injury, or that defendant Perkins is insolvent, or is about to dispose of his property for the purpose of defrauding the plaintiff, or that, unless the injunction was granted, plaintiff would be unable to enforce any judgment he might obtain. The facts alleged, we think, show a pooling of interests in the property, on the conditions stated, for the purpose of development and sale for the best price obtainable, and division of the proceeds according to the respective interests of the parties.. To that end, and for their mutual
Upon such a state of facts growing out of partnership relations, plaintiff would, ou the denial of his rights and refusal of defendaut to account and pay over plaintiff’s part of the proceeds obtained by such sale accordiug to the joint compact, be entitled to prosecute his action in equity for such an accounting and payment. The court having jurisdiction of the whole
The court did not get custody of said fund alleged to be in the bank by enjoining the detention thereof by the bank; for the bank may have been detaining said fund on other grounds or claims. Nor would the injunction requiring defendant Miller to withhold from defendant Perkins said balance owing on said contract of sale, and that the balance be paid into court, be a proper proceeding to accomplish the object aimed at by the court, unless the order for payment was voluntarily complied with; for Miller might be delinquent in payment, or claim some defense thereto; aud in either event other proceedings would be necessary to accomplish the object sought by the court. A receiver would be in a position, and possesses power under the direction of the court, to invoke remedies for such difficulties. (Code Civ. Proc., § 233.) Again, the procedure of enjoining the retention of funds in the possession of a party simply in custody thereof, until the determination of the action, would be in effect making such custodian a receiver, without
This leads to the question whether the facts set forth would warrant the appointment of a receiver. If it appeared from the verified allegations of the complaint that defendant Perkins was insolvent, or said fund was in danger of being lost, squandered, or removed from the jurisdiction, we should unhesitatingly hold it a proper case for a receiver, on the execution and delivery of the undertaking mentioned in section 231 of the Code of Civil Procedure; but no such facts are alleged. The statute on this subject provides: “ A receiver may be appointed by the court in which an action is pending, or by the judge thereof — First, in an action by a vendor to vacate a fraudulent purchase of property; or by a creditor to subject any property or fund to his claim; or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff; or of any party whose right to, or interest in, the property or fund, or the proceeds thereof, is probable; and where it is shown that the property or fund is in danger of being lost, removed, or materially injured.” (Code Civ. Proc., § 229.) This statute declares the general doctrine on this subject long prevailing in courts of equity. We regard the case at bar as clearly standing within the category of cases mentioned in the first subdivision of this section of the statute. It should be observed that in the present case all the joint operations and transactions in respect to said property and business have been consummated, and there appears to be no unsettled affairs concerning those transactions, except the collection of a balance owing on the price for which the property
Order modified.