109 F. 515 | 9th Cir. | 1901
The appellees move to dismiss the appeal for the reason that no appeal lies from the order from which it is attempted to be taken. On September 8, 1900, at the beginning of the suit upon reading and filing the bill, upon motion of the complainant the court appointed John H. McGraw receiver, without notice, and directed him to forthwith take possession of the property involved in the suit. The record shows that on the same date the receiver qualified and filed his bond. On October 15, 1900, the defendant, the Pacific Northwest Packing Company, moved the court
“Sec. 7. Tliat where, upon a hearing in equity in a district court or in a circuit court, or by a judge thereof in vacation, an injunction shall be granted or continued or a receiver appointed, by an interlocutory order or decree, in a cause in which an appeal from a final decree may be taken under the provisions of this act to the circuit court of appeals, an appeal may be taken from such interlocutory order or decree granting or continuing such injunction or appointing such receiver to the circuit court of appeals: provided, that the appeal must be taken within thirty days from the entry of such order or decree.”
We think the appeal is properly taken from the order of October 25, 1900. It is true, that order was not the order by which the receiver was originally appointed, but it was the first order made upon a hearing concerning the question of such appointment. The former order was ex parte. It was made without a hearing. In order to a hearing, it was necessary to give the defendant notice, and the opportunity to appear and contest the application. This was not done until the hearing of October 25th, which was had upon the motion to vacate the appointment. Then, for the first time, the court heard the objection of the defendant to the appointment of a receiver, and then, for the first time upon a hearing, adjudicated the question of the propriety of such appointment. By the amendment of June 6, 1900, it was intended to create the right of appeal from every order appointing a receiver upon a hearing. It was not intended to make appealable an appointment ex parte. The act secures a substantial right — the right of appeal — to every defendant whose property is taken from his possession by a receivership, but it requires that the judgment of the court appointing the receiver shall first be had upon a hearing concerning the necessity of such appointment. The act must be given a fair construction, to conserve the purposes intended to be secured by it. For the purposes of the present appeal, we hold that the order confirming the appointment of the receiver upon the hearing was an order appointing the receiver. It stands as if no other order had preceded it. To rule otherwise would be to hold that there is no appeal from the action of the court in taking from the possession of the defendant his property through a receiver, in case the order appointing the receiver was first obtained ex parte. Such a construction would defeat the purpose of the act. The evident intention of the act was to give to the circuit court of appeals the right to review the action of a circuit or
It is contended that, upon the case made upon the hill and the affidavits in the circuit court, no ground was shown for the appointment of a receiver. The bill is brought to foreclose certain mortgages made upon property situate on leased premises, and which cover the lease, the wharf and cannery building's and other sfractures erected on the premises, together with certain listed and described personal property, which constituted the tools, machinery, stock in trade, and outfit of the cannery and the cannery plant, and a certain vessel, named the “Albert Lea,” together with her tackle, apparel, and furniture. The hill alleges that said mortgages were made to secure notes, the first of which was made on October 20, 1898, for $15,000, the second May 11,1900, for $25,734, and certain advances which had been agreed to he made to the corporation by the complainant, amounting to $6,687.50, and further advances in the sum of $10,000 subsequently made. It further shows that at different dates from July 20 to August 18, 1900, the complainant loaned the corporation various sums, aggregating $12,500; that the corporation has failed and refused to pay taxes on the mortgaged property amounting to $385.67, which the complainant has been obliged to pay, and the corporation has refused to insure the mortgaged property as required by the terms of the mortgage, so that the complainant has been required to pay therefor $1,245.45; that no portion of the indebtedness described in the mortgages had been paid, although payment had been demanded, and that the complainant considered his security “insecure”; that the defendant is engaged in the salmon-canning business, and is operating said cannery, and is operating the vessel the Albert Lea in connection therewith; and that in order to prevent shutting down said cannery, and the loss that would be thereby entailed to the complainant, it is necessary to appoint a receiver lo carry on the business and operate the cannery and the said steamer. Upon the hearing which was had it was shown by affidavit that prior to July 5,1900, the corporation had become involved in financial difficulties; that at that time the officers of the corporation represented to the complainant that if additional money could he obtained for use in i ts business, with which to tide over its difficulties until the salmon run should set in, the company would he able to defray the expenses of such loan out of the profits of that season, and make payments on its old indebtedness; that, relying on such representations, the complainant made the advances which are'referred to in the hill; that on