22 Haw. 693 | Haw. | 1915
Lead Opinion
OPINION OP THE COURT BY
On June 3, 1915, M. Komeya and others filed in the circuit court at chambers against S. Koshima and others a bill in equity in which the complainants prayed that the copartnership alleged to exist between the parties he dissolved, am) that a receiver be appointed “to take charge of the property of the said partnership, and to collect assets thereof.” Upon the filing of the bill, on the application of the complainants, and upon the averments contained in the bill, the circuit judge made an order appointing Joseph Lightfoot, Esq., as such receiver. This was done without notice to the defendants. On June 12, M. Oyama, one of the defendants (the petitioner here), filed a motion to vacate the order appointing the receiver upon the ground, inter alia, that said Lightfoot was the attorney for the complainants and therefore, was not a suitable or proper person to act as receiver. On July 1, Lightfoot was removed and Joseph Gr. Pratt, Esq., was appointed receiver in his place. In the meantime Gr. Nakamura,,another defendant, filed his answer to the bill, and the defendant Oyama interposed a demurrer setting up, among other grounds, that “said bill is without equity upon its face and is utterly barren of allegation necessary and required to secure the cognizance of a court of chancery with respect to the prayer thereof” and that said bill “is vague, indefinite, uncer
In the bill of complaint it was, in substance, averred that the parties complainant and defendant were copartners engaged in the business of banking; that the defendant Nakamura was appointed president and manager of the bank; and the defendant Komeya was appointed cashier; that almost immediately after entering upon the management of the hank the said Nakamura began to lend large sums of money to his friends upon their unsecured promissory notes, and loaned at various times sums of money aggregating the sum of $6000 to one Yamamoto (a defendant) well knowing him to be financially irresponsible and unable to repay the money loaned; that the said Nakamura borrowed from the bank, on his own unsecured note, t]ie sum of $16,328.85 upon which there remains unpaid the sum of $13,-328.85; that on or about February 28, 1912, the complainant Komeya and certain other members of the firm were obliged to
The substance of the bill has not been stated for the purpose of considering whether the demurrer of the defendant Oyama was properly overruled, for if error was committed in that respect it could be corrected, if the bill shall have not in the meantime been amended, only upon appeal or writ of error after final decree. The question presented for determination here is whether the averments of the bill, taken as true, authorized the appointment of the receiver. Upon the facts averred did the circuit judge have power to make the order of appointment? It does not necessarily follow that because the court had jurisdiction of the parties and of the subject matter of the suit, i. e. the dissolution of the copartnership, that it had the legal power to make the order in question. “The writ of prohibition
If the bill does not contain such averments as would be necessary to entitle the complainants to the principal relief sought, namely, the dissolution of the partnership, there was no legal ground for the appointment of the receiver. But even if a case for the dissolution of the partnership was shown, as to which we express no opinion, it would not necessarily follow that the facts averred justified the appointment of -the receiver. “Upon a preliminary application for a receiver, the court does not determine the questions arising between the partners, the only question for consideration being whether, upon the facts disclosed, there is an apparent necessity for a receiver to protect
As a basis for the appointment of a receiver, the plaintiff must show, not only that he has an interest in or right to the fund or property, but “that the possession of the property by the defendant was obtained by fraud; or that the property itself, or the income arising- from it, is in danger of loss from the neglect, waste, misconduct or insolvency of the defendant.” 5 Pom. Eq. Jur. Sec. 64; 34 Cyc. 19. See California Feed Co. v. Club Stables, 10 Haw. 209, 214; International Trust Co. v. Decker, 152 Fed. 78, 82; Warwick v. Stockton, 55 N. J. E. 61, 66; Aldrich v. Bag Co., 87 Atl. (N. J.) 65; Gray v. Newark, 79 Atl. (Del.) 739. It would, therefore, follow necessarily, in most cases, that a plaintiff in possession may not obtain the appointment of a receiver for it would be a rare case in which the plaintiff could say that property in his own possession is in danger of loss or injury through any preventable cause. See Smith on Receiverships, Sec. 192; Smith v. Lowe, 1 Edw. Ch. 33; Buchanan v. Comstock, 57 Barb. 568, 579. In the case at bar it appears that at the time the receiver was appointed the complainants were in possession of whatever property and assets the firm had, and there was no attempt made to show that there was any danger of any loss or injury thereto. An order appointing a receiver based upon a showing which, as matter of law, is insufficient, is in excess of the jurisdiction of the court. Cronan v. Dist. Court, supra. We are of the opinion that no legal ground for the appointment of the receiver was shown, and that the order of appointment was made without jurisdiction.
Prohibition does not ordinarily lie where the party may obtain relief by an appeal, “but it does not always follow that
It is contended that the writ should not be granted because the petitioner did not present the question as to the power of the circuit judge to appoint the receiver Pratt to the court below. The rule of practice here invoked rests upon sound reason, and it should be enforced whenever the circumstances so •warrant, as was the case in Union Feed Co. v. Kaaihue, supra. In the case at bar, one of the grounds advanced in the motion to set aside the order appointing Lightfoot as receiver was that “It appears from the bill in said case that the petitioners herein were in possession of the property of said copartnership when said order was made, and were in all things managing, conducting, and controlling the business and affairs of the said copartnership.” This presented to the circuit judge the lack of the fundamental ground upon which a receiver could be appointed, namely, that there was danger of loss of or injury to the property of the firm. The motion to vacate the order was granted upon the ground that the receiver then appointed was not a disinterested and impartial person, but in appointing another receiver the circuit judge in effect ruled that the ground above stated was not well taken. We think it was not necessary that the point should have been presented again, and that the rule that the jurisdictional question should be first raised in the lower court was substantially and sufficiently complied with.
We hold that the order appointing Pratt as receiver was made in the absence of jurisdictional facts to support it, and, therefore, that it was beyond the power of the court to make. A
Dissenting Opinion
DISSENTING OPINION OP
The only question arising in the original proceeding in this court for a writ of prohibition prohibiting the continuance of the receivership of Joseph G. Pratt as receiver for the banking partnership of which the petitioner and the respondents M. Eomeya, Y. Ishii, U. Eobayashi, T. Mitamura and others were partners under the name of the Japanese Bank, is one of jurisdiction.
The bill of complaint filed by M. Eomeya, Y. Ishii, U. Eobayashi and T. Mitamura against the other partners, S. Eoshima, I. Yamamoto, M. Oyama, S. Eobayashi and G. Nakamura, respondents, on the 3d of June, 1915, in the circuit court of the first judicial circuit, alleged the organization of the partnership on the 19th day of May, 1909, for the purpose of carrying on a banking business in Honolulu under the name of the Japanese Bank; a capital of $30,000 subscribed by each of the parties in amounts varying from $500 to $8,750; the appointment of the respondent G. Nakamura as president and manager of the said bank; that all of the partners, except G. Nakamura, were without experience in the banking business and implicitly relied upon G. Nakamura to conduct the same. The bill, without using the words “mismanagement” or “violation of duty,” alleges that immediately after entering upon the management of the partnership business the said Nakamura began to lend large sums of money to his friends upon unsecured promissory notes and that he loaned one of the partners, I. Yamamoto, large sums of money, knowing the said I. Yamamoto to be financially irresponsible and unable to pay the said loans, taking the unsecured note of said I. Yamamoto for various loans in the sum of $6000, upon which nothing has been paid in the way of principal or interest, and that said I. Yamamoto has no property of any
While the bill of complaint, which prayed for dissolution of the partnership and a settlement of the partnership accounts and an adjudication of the liabilities of the partners among themselves, is inartistically drawn, yet the probative facts stated therein show that the partnership business had proven a failure and could not be conducted except at a loss; at least two of the partners, Nakamura and Yamamoto, have been guilty of a breach of duty as partners, in that they have withdrawn from the partnership business, without security, large sums of money aggregating more than $20,000, nearly $20,000 of which has not been repaid, is outstanding, and at least that portion of which was withdrawn by Yamamoto is uncollectable. The probative facts alleged in the bill of complaint also show a mismanagement by Nakamura, the only partner having experience and knowledge of the banking business and upon which the ■other partners relied, such mismanagement resulting in the apparent failure of the business. Under the facts alleged I am of the opinion that the bill presented a cause for a dissolution of the partnership, and a winding up of the partnership business. If that is true then there can be no doubt as to the juris
Discussing then the question of jurisdiction or power of the circuit judge to appoint a receiver in the equity suit, I think the correct rule is stated in 30 Cyc. 726, as follows: “In a suit for partnership dissolution and settlement, a court of equity has ample power to appoint a receiver, but the application of such appointment is addressed to the discretion of the court.” In. Pomeroy’s Eq. Jur., Sec. 1333, it is said: “In suits for a dissolution or winding up of the partnership, and even in some very special cases without a dissolution, the court may appoint a receiver of the firm assets, when there is any misconduct on the part of the defendants, and even, perhaps, where the partners themselves are wholly unable to agree as to the management of' the property and the settlement of the partnership affairs.” The-same learned author, in section 1330, in speaking of the appointment of receivers where two or more parties are equally entitled to possession of the property in litigation, says, “where two or more litigants are equally entitled, but it is not just and proper that either of them should retain it under his control, — as, for example, in some suits between partners.” In Ex parte Walker, 25 Ala. 81, it is said: “The authorities affirm as a general rule, that when a bill is filed seeking a dissolution of a partnership, and it satisfactorily appears that the complainant will
Under the authorities and established rules of law I am of the opinion that the probative facts alleged in the bill of complaint for a dissolution of the partnership and a settlement of the partnership affairs set forth sufficient cause for a judicial dissolution and winding up of the partnership matters, and under the showing made in the bill and the established rules of equity the circuit judge had jurisdiction to appoint the receiver. The allegations of the bill for dissolution and settlement of the partnership alleged facts which, to say the least, made a prima facie case for dissolution and settlement of the partnership and for the appointment of a receiver, hence, to my mind, it cannot properly be held that the receiver was appointed without jurisdiction.
The petitioner relies upon general rules in cases other than partnership to establish that the appointment of the receiver by the respondent circuit judge was without jurisdiction. In 34 Cyc. 18, 19, the general rule is stated as follows: “A reference-to the various decisions upon applications for the appointment of receivers will show that each case has been made to depend upon its own peculiar features in so far as particular facts are concerned and it is not often that one case will throw light upon another except so far as it may establish the general principles which should govern the exercise of the court’s discretion upon such motions. These general principles are that plaintiff must show: (1) Either that he has a clear right to the property itself,
Petitioner relies upon other authorities to sustain his contention that the receiver was appointed without jurisdiction, or in excess of the jurisdiction, of the circuit judge, which, in my opinion, do not apply here. I will briefly review the authorities relied on by petitioner: In the case of the International Trust Co. v. Decker, 152 Fed. 78, an appeal from an order appointing a receiver for a corporation, the question was not one of power, hut of propriety. In the case of Warwick v. Stockton, 55 N. J. Eq. 61, the court declined to appoint a receiver on the ground that the facts alleged did. not show a partnership but did show that the plaintiff and the defendant had entered into a joint adventure. No question of jurisdiction, or excess of jurisdiction, is discussed in that case, which was an original application for appointment of a receiver in the chancery court and there denied. In the case of Smith v. Lowe, 1 Edw. Ch. 33, which was a suit by one partner to wind up the partnership, an original application in the court of chancery for the appointment of a receiver was denied on the ground that the plaintiff was in possession of all the partnership property and in position to protect himself, to which the defendant did not object. In Aldrich v. Bag Co., 87 Atl. (N. J.) 65, there was an application for the appointment of a receiver for a corporation under a statutory provision, and the facts alleged did not make out a case by showing insolvency on the part of the corporation as
To my mind the cases relied on by petitioner are not applicable to the case at bar. The rules relating to the appointment of receivers for corporations and for individuals other than partnerships are entirely different from those relating to the appointment of receivers for a partnership when the partnership business has proven a failure, cannot be conducted except at a loss, or there has been mismanagement or breach of duty on the part of one or more of the partners. Another case relied on by the petitioner is that of Cal. Feed Co. v. Club Stables, 10 Haw.
In my opinion the alternative writ heretofore issued should be quashed and the peremptory writ of prohibition denied.