14 Mont. 577 | Mont. | 1894
Lead Opinion
The question of the discretion of the district court is not before us, so it may be considered as a conceded fact that it was properly shown to the district court that the sheep were in danger of suffering material loss and injury if left in the hands of the sheriffs, and that the appointment of a receiver would tend to avoid this loss and injury.
It is also conceded, of course, that the showing was made of danger of loss and material injury. Stated more simply, the proposition perhaps may be reduced to this: In an action on a simple money demand, for a plain money judgment, in which action property has been attached, has the court power to appoint a receiver of the attached property, if it appears that there is danger that it will be materially injured?
The statute—quoting the portion which is pertinent, or which was relied upon by respondent—is as follows: “A receiver may be appointed by the court in which an action is pending, or by the judge thereof: 1. In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor
Counsel for respondent next urge that authority for this appointment is found in subdivision 1 of section 229. Before proceeding to read that subdivision, we remark, in passing, that there is some argument of expediency as to the making of the appointment of the receiver in this case as well as in, perhaps, other actions of debt where there are numerous attachments of property. That argument should, of course, be addressed to the law-making department of the government, and cannot be seriously entertained by a court when it stands
We will then proceed for a moment to analyze the statute. Turning again to subdivision 1, sections 229, it is observed that the first sort of case in which a receiver may be appointed is in an action by a vendor to vacate a fraudulent purchase of property. This, of course, may be passed without comment. Next, we find that a receiver may be appointed in an action by a creditor to subject any property or fund to his claim. We should be inclined to say that this might be passed without comment, were it not that counsel for the respondent has relied upon it. We therefore examine it a moment. The action here was a simple one of debt. Surely it cannot be contended that a simple action of debt, asking only a straight money judgment, is an action by a creditor to subject property or a fund to his claim. The action is not for such a purpose. It does not seek such relief. There is nothing about such an action which looks to an obtaining of the relief of subjecting a fund or property to the plaintiff’s claim. Nor does the fact that a writ of attachment was issued change the nature of the action from a money demand to one for the relief of subjecting a fund to plaintiff’s claim.
Again, it has been suggested that the following portion of subdivision 1, section 229, is sufficient to grant the power to the district court. The portion reads as follows: “A receiver
The California supreme court said, as to a kindred subjects “If it had been intended to confer the power to appoint an officer of that character [a receiver] in an action at law for the recovery of the possession of real property, it is not credible that the legislature would not have said so in terms, since it was apparent that it was their purpose to specify all cases, whether at law or equity, in which receivers could be appointed.” (Bateman v. Superior Court, 54 Cal. 289.) The court was construing a statute similar to our own. Therefore, upon such analysis as we are able to give subdivision 1 of section 229 of the Code of Civil Procedure, we cannot find therein the jurisdiction to appoint the receiver in this case.
There seems to be nothing in the further portion of the subdivision which is applicable. The rest of the language states
But we do not think that subdivision 1 of section 229 would bear that construction. If such were the meaning of the statute, the word “or” would have been inserted before the word “on,” at the top of page 116 of the Compiled Statutes, at the eighth line of the section. And the section would have read, in effect, that a receiver may be appointed in an action by a vendor to vacate, etc., or by a creditor to subject, etc., or between partners or others jointly interested, etc., “or” (this being the “or” that would have to be inserted) on the application of plaintiff, or of any party, etc., upon the danger of the
We cannot see any other reading of the statute than that which we have above pointed out, and such reading does not include the appointment of a receiver in such a case as the one before us. This does not seem to us to be construing the statute at all. It seems to be nothing further than reading its plain terms.
We are of opinion that this writ of certiorari should be granted, and that the order of the district court in appointing the receiver should be annulled,
Dissenting Opinion
I dissent from such a narrow and rigid construction of the provisions of our remedial statutes
In the foregoing treatment it is conceded that by holding the attached property in the custody of several sheriffs, and without change of situation, great loss would be involved, which could be avoided by placing the property in the custody of a receiver. It has been the practice of trial courts for a long period in this jurisdiction to appoint a receiver in such a case, and put him in charge of the property attached and held under various attachment liens, where the conditions were such as to entail injury and loss if such method were not pursued.
The code provides in very broad and general terms that a receiver may be appointed in cases where partners “ or others” are “jointly owning, or interested, in any property or fund, on the application of plaintiff, or of any party whose right to, or interest in, the property or fund, or proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured.” (Code Civ. Proc., § 229.) In the face of this provision, and the further provisions of the code that all its provisions must be liberally construed, so as to work out substantial justice, and in the face of the conceded fact that unless the court interposes a receiver in this case great loss would result, and in view of the showing that the appointment of a receiver therein would avoid such loss and work great advantage to all parties concerned, still it is held by a majority of this court that no receiver can be appointed in such a case. In order to reach that conclusion it is unavoidably held by implication that attaching creditors who have by regular proceedings levied attachment liens upon property of their debtor, and who have a clear right (subject only to other direct liens in advance of theirs) to the funds or proceeds arising from such property, still have no “right or interest in” the property attached, “or
Rehearing
ON REHEARING,
Counsel on the argument on rehearing seem to have obtained the impression that the original decision was based upon the ground that the receiver should not be appointed because there was another adequate remedy. Whatever was said as to the creditor’s rights and remedies under his attachment was simply a suggestion to meet counsel’s argument ab inconvenienti. But the question of the expediency of giving the courts power to appoint a receiver in certain plain money demand actions is a matter to be addressed to the legislature, and not to the courts. In the original opinion we endeavored to make a plain, simple reading of the statute as to receivers. Beading that statute in whole, and not in part, we cannot find any authority to appoint the receiver in this case. As we remarked in the original opinion, such power might be beneficial in some cases. That subject we commend to the legislature, where only it belongs. It is ordered that the original decision shall stand.