Popp v. Daisy Gold Mining Co.

74 P. 426 | Utah | 1903

McCARTY, J.,

after stating the facts, delivered the opinion of the court.

1 By an examination of the record brought to this court on the former appeals referred to in the foregoing statement of facts (25 Utah 76, 69 Pac. 528, and 69 Pac. 1134; 26 Utah 373, 73 Pac. 521) it will be seen that all of the property and assets of the respondent Daisy Gold Mining Company, which the receiver was appointed to take charge of, have been, under and in pursuance of the decree and orders of the trial court, which decree and orders were affirmed by this court on the appeals referred .to, disposed of, and the proceeds applied to the payment of respondent’s debts. The very object of appointing a receiver is to protect the party complaining from loss; and when the danger of loss no longer exists, or when the fund or property involved has been disposed of under the decree and order of the court, and the proceeds applied to the payment of the various claims against it according to the right and equities of the parties holding them, as was done in this case, and there is nothing for a receiver to do, and no duty for him to perform, a case will not fie' reversed, even though the trial court may have technically erred in its rulings, and the' litigation prolonged for the purpose of deciding some disputed point or question of law in the case which decision would in no way affect the substantial rights of the parties-.- - •

2 3 There is another reason why the appellant can not prevail in this case. It appears from the record that the qrder appointing the receiver was made before the action was commenced. This of itself rendered the appointment a nullity. Section 3114, Rev. St. 1898, provides that “a receiver may he appointed iby the court in which an action is pending or has passed •.to judgment, or by the judge thereof,” and there follows an enumeration of the different kinds of actions in which the appointment may be made, and a specification of circumstances and conditions authorizing such appointment. The fact that there was an oral understanding between counsel and the judge making the appointment that the order should not become effective until after an action was commenced, does not relieve the situation. The statute provides when and under what circumstances a receiver may he appointed, and the power thus conferred can neither he enlarged nor abridged by any understanding or agreement, oral or otherwise, between the plaintiff or his counsel and the judge making the appointment. It necessarily follows that,, if an order appointing a receiver can be made one day before an action is commenced, as was done in this case, it can be made a month, a year, or for an indefinite length of time, which no lawyer, we take it, will seriously contend can be done, however unusual the circumstances upon which the application is based, and however urgent the necessities for the appointment might be. Davis v. Flagstaff Min. Co., 2 Utah 74; Gold Hunter Min. Co. v. Holleman (Idaho), 27 Pac. 413; Smith on Receivers, 39, 602; Beach on Receivers, 70; Merchants’ & Mfrs.’ Bank v. Kent, 43 Mich. 292, 5 N. W. 627; Jones v. Schall, 45 Mich. 379, 8 N. W. 68; Harwell v. Potts, 80 Ala. 70, 17 Am. and Eng. Ency. Pl. & Pr., 684.

We find no reversible error in the record. The judgment is therefore affirmed. The costs of this appeal to be taxed against appellant.

BASKIN, C. J., and BARTCH, J., concur.