54 Colo. 576 | Colo. | 1913
delivered the opinion of the court:
This is an original application for a writ of prohibition to restrain the district court of San Juan county and the Honorable Charles A. Pike, judge thereof, from proceeding further in a certain cause pending in said court, and to compel the court to quash, set aside and annul certain orders appointing receivers therein, and authorizing receivers’ certificates of indebtedness. The order and rule to show cause were issued, and return made thereto wherein the respondents challenge the sufficiency of the petition, etc.; it also, raises the question of acquiescence and laches upon behalf of the petitioners.
Upon February 7th, 1911, E. E. Dick, as plaintiff, filed in the district court of La Plata county his complaint against The Green Mountain, Mining and Milling Company/' as' de- . fendant. Among other things this complaint states," that the defendant is the owner and in possession of sundry mining properties, etc., in San Juan county of a value in excess of $1,-000,000.00; that it has heretofore been engaged in operating these properties, etc.; that it has issued $600,000.00'of interest-bearing bonds, secured by mortgage upon its property;-'of
Upon the same day the defendant company purported' to file its answer in which it admits the truth of the allegations contained in the complaint, and consents to the appointment of receivers. Three receivers were appointed upon the day the complaint and answer were filed; they therafter qualified and took possession of the property and it appears have thus continued under the orders of the court.
Upon February 8th, 1911, the court, upon its own motion, transferred the cause’ to San Juan county, it appearing that it was one affecting both real and personal property situate in that county.
The prayer is for permission to intervene and become defendants, to include such other stockholders and creditors as désire to join them, that they may be permitted to file a motion to vacate the order appointing the receivers, to demur to the bill, or otherwise plead.
Other allegations are set forth pertaining to the history of the defendant company and the alleged fraudulent acts of Dick, DeArmit and others in connection with its management. The prayer is the same as in the former petition. The
. The contentions of the petitioners are that while the court had jurisdiction to entertain the action proper, which they claim is a suit upon notes, and for services rendered, it was without jurisdiction over the property of the corporation attempted to be covered in that portion of the petition setting forth alleged reasons for the appointment of receivers; that if this position is wrong and the court had jurisdiction to pass upon the question, that when the allegations of the petition are considered, it fails to disclose facts sufficient to justify the court in its appointment of receivers and in so doing it exceeded its legitimate powers; that by presenting their petition for intervention with these reasons therein stated they gave to the trial court an opportunity to correct its erroneous ruling in this respect, which it declined to do, and that this is. sufficient to give them the right to petition this court for the writ of prohibition therein, although they have not yet become parties to the action, and that they have no plain, speedy and adequate remedy at law to protect their rights in the premises.
This court has universally held that a writ of prohibition is not a writ of right, but rests in the sound discretion of the court —Leonard, v. Bartels, 4 Colo. 95; People ex rel. v. District Court, 6 Colo. 534; McInerney v. City of Denver, 17 Colo. 302; People ex rel. v. District Court, 19 Colo. 343; People ex rel. v. District Court, 21 Colo. 251; People ex rel. v. District Court of Lake Co. 26 Colo. 386.
For the reasons hereinafter stated, we' are of opinion that upon account of the acquiescence and laches of the petitioners,
It will be observed, that the receivers were appointed February 7th, 1911; that upon March 1st, same year, the petitioners tendered for filing their first petition of intervention. Dais was denied upon March nth, following. Nothing further was done by them until January 6th, 1912, a period of approximately ten months, when they filed another petition to intervene, wherein they set forth, in substance, as excuses for delay in its presentation that they have abandoned any right to stand upon their former petition, and acquiesced in the appointment of the receivers for the reason, as they allege, that it was represented to the court at the time of the appointments that within a very short time funds would be raised by those who desired the appointment of receivers sufficient to pay the pressing debts of the defendant company, and also to develop and improve its properties and to enable it to work and operate ■ them and make its plant a going concern, and that the court’s •decision in refusing to allow them to intervene was largely based upon these promises, but that during- these ten months nothing had been -done in this respect to relieve the company from its financial ■ embarrassment, or to put its property in a condition to work and operate, but; on the contrary, a large amount of additional indebtedness had been incurred, etc. In other words, they said to the court that while we did not approve of the appointment of receivers and thought you were without jurisdiction in so doing, and we thus stated in our first petition for intervention, yet upon account of the promises made to you that the emergency debts of the corporation would be' paid, and sufficient other funds arranged for’ to make the defendant’s business a going concern, we acquiesced therein, and said nothing further for a period of ten months in order to see if such arrangements would be carried out by that faction of the stockholders of the defendant who desired and secured the appointment of the receivers. • To put it in another
The second petition for intervention was presented January 6th, 1912, and by the court acted upon and refused the same day. The petition for the writ of prohibition was filed in this court' November 22nd, 19-12.' It fails to give any excuse or reason why it was not applied for until over ten months after the district court for the second time had refused to grant the relief prayed for.
Regardless of whether the case is of such importance as the petitioners claim, we are of opinion that their actions as above stated, during the ten months after these appointments were made, present a case of acquiescence during that period and that their delay for the ten and a half months thereafter, before making application here for the writ of prohibition, presents a case of laches and when both are considered they are sufficient to justify this court in refusing to consider the questions raised pertaining to the merits of the controversy under its extraordinary jurisdiction by writ of prohibition.
While it is claimed that the petitioners (by presenting their petition of intervention) gave to the trial court an opportunity to pass upon the question of its jurisdiction to appoint receivers in an action to which the petitioners were not then parties (a question unnecessary to determine) ; it is conceded the only thing that the court did pass upon was their .right to intervene. Its refusal was such a final judgment against them to which a writ of error will lie. — Henry v. Travelers’ Insurance Co., 16 Colo. 179 ; Curtis v. Lathrop, 12 Colo. 169; Limberg v. Higginbotham, 11 Colo. 316; Harman
Had a writ of error been promptly sued out upon the court’s first refusal to allow the petitioners to intervene, the matter could probably have been reached and disposed of in the regular manner by this time. Whether the petitioners: had the right to present a second petition to the court, raising the same contention, with the further statements that the appointment of the receivers had not proven successful or accomplished what was promised, is unnecessary to determine. They elected, as they say, after the first refusal, to take their chances, and had the appointments brought the results alleged to have been promised, it appears they would have been satisfied and continued to acquiesce in the jurisdiction of the court, but inasmuch as they did not work out as they alleged was promised, they now desire to have the question determined in this extraordinary manner. Under such circumstances the application ought not to be entertained.
For reasons stated the alternative order and rule will be quashed and the writ denied.
Application denied.
Decision en banc.