9 Wash. 12 | Wash. | 1894
Lead Opinion
The opinion of the court was delivered by
— This is an appeal from an order appointing a receiver to take possession of certain notes alleged to be in the possession of the defendant. The first question to be determined is as to the scope of the inquiry in this court upon appeals from orders of this kind. It is contended on the part of the respondent that such inquiry must be confined within narrow limits, and authorities have been cited to sustain his contention in that behalf. The convenience of this court would surely, and public policy probably, be subserved by the sustaining of the contention
Examining the proofs offered in this case with these limitations in view, and applying thereto the law of the case as we understand it, there is practically but a single question of fact as to which there could be any doubt whatevei’, and that is as to whether or not the notes in question came into possession of the defendant fraudulently. The proof offered tending to show that the defendant was insolvent was of such an unsatisfactory character, and was so fully explained and overthrown by testimony on the part of the defendant, that it could furnish no reason for the appointment of a receiver.
In determining the question as to whether or not the notes were fraudulently obtained by the defendant, we feel
As to the character of these prior transactions, as shown by the proof offered on the part of the defendant, they Avere of such a nature that except ixx an emergency growing out of absolute insolvency, or something of that kind, they should not be determined adversely to the rights of the one in possession of the fruits thereof, upon an application for a receiver, but should be left for determination upon the hearing of the cause upon its merits.
The right to appoint receivers vested in the courts should only be exex’cised when it is clearly shown to be necessary to prevent the defeat of justice. There has been a tendency in recent years among courts to appoint receivers almost as a matter of course, if the case as made by the plaintiff’s complaint seems to warrant such action. This tendency has advanced at least as far as the proper administration of justice Avill allow, and in our opinion it is the
The order appointing the receiver must be reversed.
Anders and Stiles, JJ., concur.
Dissenting Opinion
(dissenting). — I think, from a perusal of the testimony, that the action of the court in appointing the receiver was justified, and I therefore dissent.
Scott, J., concurs.