17 Wash. 380 | Wash. | 1897
Lead Opinion
Application for a writ of prohibition against the superior court of Bing county. Pending proceedings to foreclose a mortgage and trust deed by plaintiff, a receiver was appointed by the superior court, and, after taking possession of the property embraced in the trust deed, an issue arose between certain unsecured creditors of the mortgagor and the plaintiff trustee. The superior court heard and determined such controversy and adjudged the mortgage lien superior, from which the unsecured creditors, Murphy, Grant & Co. and others, appealed to this court.
The cause is found reported in 16 Wash. 499 (48 Pac. 333), entitled “Manhattan Trust Co. of New York v. Seattle Coal & Iron Co. et al.” Before the decision of the cause here, plaintiff procured a decree of foreclosure and sale in the superior court, and the property was sold subject to confirmation; but before the confirmation, the remittitur from this court went down. The superior court thereupon in effect vacated the order of sale and proceeded in accordance with the mandate of this court to adjudge the superiority of the claims of Murphy, Grant & Co. and other appealing creditors over the mortgage and all claims of plaintiff, and also proceeded further and directed that other general creditors of the insolvent corporation, Seattle Coal & Iron Co., should file their claims to priorities over the mortgage and over plaintiff’s claim, if priorities were asserted, within a specified time, for hearing ánd determination by the superior court; and that court also directed a sale of all the property embraced in the mortgage and in the custody of the receiver, at public sale, by the receiver at a sum of not less than $130,000.
The relator maintains that the superior court had no power to disturb its decree entered pending the appeal of
“ In this case no question has been raised or considered as to the whole property of this corporation being a trust fund now in the possession of the court for the benefit of the creditors of the corporation alike.”
The foreclosure suit of plaintiff trustee against the Seat-Coal & Iron Co. was begun in February, 1894, and from that time until the present the entire property of the defendant corporation has been in the custody of the receiver. The receiver, it now appears from the record in this proceeding, by order of the court entered October 12, 1895, was directed to publish notice to all creditors of the Seattle Coal & Iron Oo. notifying them to present all claims against the company, duly verified, to him within forty days after date of publication. A great many creditors then presented their claims duly verified, which were approved by the receiver. All this was done with the consent of the plaintiff trustee. The plaintiff trustee, in a
Tbe superior court has proceeded in conformity to tbe opinion of tbis court in tbe case heretofore mentioned, and so far as tbe mandate ordered, and seems to have proceeded properly in tbe further administration of its trust with tbe property of tbe defendant coal company in its custody. We find no reason for interference with its order and decree. Tbe writ is, therefore, denied.
Soott, O. J., and Gordon and Dunbar, JJ., concur.
Dissenting Opinion
(dissenting). — I think the remittitur from this court did not authorize the superior court to vacate the judgment entered in the regular foreclosure suit, but only to so modify it as to make the claims of the petitioning creditors prior to those of the mortgagees. "When the court in effect set aside and vacated the entire judgment and decree of foreclosure, and ordered a new sale of the property in the foreclosure suit, by a receiver in that suit, I think it proceeded without authority of law. I, therefore, am of the opinion that the writ prayed for should issue.