9 Wyo. 408 | Wyo. | 1901
One question only is presented in this case, viz.: The authority of the district court or judge to appoint a receiver pendente lite, without notice to the defendant.
On September 20, 1897, the First National Bank of Rock Springs filed its petition in the district court of Sweetwater County, for the recovery of $5,800, and interest due upon certain promissory notes, and the foreclosure of a real estate mortgage and a chattel mortgage given to secure the payment of said indebtedness. September 21, 1897, summons was duly issued in the action. On the same day, pursuant to a prayer therefor in (he
October 1, 1807, the defendant, appearing specially, moved the discharge of the receiver upon the sole ground that no notice of the application for a receiver had been served upon him. An affidavit of defendant was attached to the motion showing that he had received no notice of the application, and that on the day the petition was filed, he was in the county all day, until evening, when he went to Diamondville, in Uinta County, returning September 23 ; that upon his return he found in possession of a member of his family, the summons and order appointing the receiver. The order was made by the judge, in his district, but at Evanston, in Uinta County. Evanston and Diamondville, it may be remarked, are widely separated, considering the ordinary means of travel to reach the one place from the other. None of the facts set up in the petition as reasons for a receiver were denied or adverted to in the motion or affidavit attached thereto. No evidence other than the motion and affidavit was produced or heard upon the application to vacate the appointment. The motion was denied, to which defendant excepted, and he prosecutes error.
Our statute regulating the appointment of receivers is silent upon the subject of notice. As a general rule, a receiver should not be appointed until after notice to the defendant or other interested parties. In Smith on Receiverships the rule is stated as follows : ‘ ‘ The court will not appoint a receiver until the defendant, or party in possession of the property, has been heard, or has had an opportunity to be heard, in response to the application.” Sec. 5, p. 14. See also 17 Ency. Pl. & Pr., 717. But there are certain well-defined exceptions to that rule? which are thus summarized by the author
The statute authorizes a receiver in an action to foreclose a mortgage, when it appears that the mortgaged-property is in danger of being lost, removed, or materially injured, or that the condition of the mortgage has not been performed, and the property is probably insufficient to discharge the mortgage debt. R. S., Sec. 4054. The petition in this case alleged the nonperformance of the conditions of the mortgage, and the insufficiency of the property to discharge the indebtedness.
It is clear that the question raised is not jurisdictional. The order would not be void on account of the absence of notice ; but, if made upon an insufficient showing, merely erroneous, and subject to be vacated on application. Neeves v. Boos, 86 Wis., 313.; Dwelle v. Hinde, 18 O. Cir. C., 618. Although the motion stated but one ground for the discharge of the receiver, viz., no notice to defendant, it probably presented to the district court, and presents to this court, the question whether the facts alleged for the appointment were sufficient to authorize it, without affording defendant an opportunity to be heard in the first instance. At the outset, it may be remarked, the matter of appointment of receivers pendente Ute is one resting largely in the sound discretion of the court ; and the action of the court in the premises should not be set aside unless there appears to have been a plain abuse of judicial discretion.
By reference to the petition and exhibits attached to
In addition to the basic allegation for the appointment of a receiver already alluded to, the following facts were alleged in the petition and sworn to positively: That the defendant had made credit sales of a part of the mortgaged chattels, an account of which was kept in books of account kept in the course of his business by the defendant and then in his possession; that 'divers persons were indebted for the goods so sold; that for fifteen days defendant had been grossly intoxicated so as to be unable to conduct his business, and, while so intoxicated, was squandering large sums of money, being the proceeds of sale of the mortgaged chattels, in riotous living. It was averred that, if left in defendant’s possession, the mortgaged property would, for the reasons aforesaid, be greatly injured, the proceeds of sales would not be applied upon the debt as required by the mortgage; and unless a receiver should be appointed the plaintiff would be prevented from realizing sufficiently upon its security.
We have had some doubt as to the necessity for a receiver without notice with respect to the real property. The motion and affidavit of defendant did not distinguish between the two classes of property, and we are left to that which appears in the petition as to that matter. It
Affirmed