56 P. 85 | Idaho | 1899
— October 17, 1898, Kennedy J. Hanly, as plaintiff, filed bis complaint in the district court oí Shoshone county against Charles Sweeny, F. Lewis Clark, and the Empire State-Idaho Mining and Developing Company, a corporation, defendants, for the purpose of setting aside and having declared null and void a deed made by the said plaintiff conveying to the said defendants Sweeny and Clark an undivided one-eighth interest in and to the Skookum lode mining claim, situated in Shoshone county, Idaho, to have an accounting for the proceeds of ores extracted from said mining claim hy defendants, and for the appointment of a receiver to take possession and control of the property in dispute during the pendency of the action, and for other relief. The theory set forth in the complaint as the basis of this action is that said deed was procured by the defendants through fraud, in two particulars, to wit: 1. That at the time of the making of said deed said defendants had opened and discovered large bodies of rich ore in the said Skookum claim, which fact was unknown to the plaintiff, and fraudulently concealed from him by the defendants. 2. That said defendants fraudulently obtained possession of said deed in the following manner, to wit: That the plaintiff, being the owner of an eleven twenty-fourths interest in and to said Skoo-kum claim, and also to one hundred thousand shares of stock in the Chemung Mining Company, a corporation, did on the thirtieth day of April, 1898, enter into two separate options or escrow contracts, under, by and through which he placed said shares of stock in one envelope, and deposited the same in escrow with the Exchange National Bank of Spokane, Washington, with instructions indorsed thereon, directing and authorizing said escrow holder to deliver said envelope and its contents to the defendants Charles Sweeny and F. Lewis Clarke upon their payment to said bank for the credit of plaintiff of the sum of $18,000, to be paid on or before August 1, 1898; that in another envelope the plaintiff deposited the deed in question, conveying to the defendants Sweeny and Clark, from the plaintiff, an undivided one-eighth interest in and to said Skookum claim, and also another deed conveying from plaintiff to said defendants an undivided one-third interest in and to said Skookum claim,
It is abundantly shown in the record that the principal assets-of the Chemung Mining Company consisted in the interest that it owned and claimed in said Sko'okum mining claim. The pleadings in the record are very voluminous, and we deem it neither necessary or practical to go into the details of the allegations contained in the pleadings. An order to show cause before the defendant, as district judge, at his chambers in Wallace, Idaho, on the ninth day of November, 1898, was served upon the defendants, and pursuant to said order the application of plaintiff for a receiver was heard by said judge at chambers.. Upon the hearing of said application, said pleadings were considered; also, an affidavit made by plaintiff, and one by Joseph B. Ivendall on behalf of the plaintiff, and affidavits of the defendants Charles Sweeny and F. Lewis Clark, and of one E. J. Dyer, cashier of the Exchange National Bank of Spokane, were filed.and used on said hearing on behalf of defendants. Said application was taken under advisement, and afterward, and: on the ninth day of January, 1899, the defendant, as said district judge, made an order appointing one Barry N. Hilliard receiver, to enter upon said mining claim, and employ -assistants,, and keep an account of ore extracted from said mining claim,, and receive from the defendants eleven twenty-fourths of the net proceeds of all ores extracted from said mining claim, and to hold the same subject to the future orders of said district court. There is no allegátion in the complaint, nor evidence in the record, showing that the defendants are insolvent, or unable to amply respond to the plaintiff for all damages that he might sustain by reason of the working of said mining claim by the defendants, in the event that he is finally successful in this cause. While, on the other hand, it is shown by the plain
It is contended on behalf of the plaintiff that the sole question before the court is whether or not the lower court, or the defendant, as judge thereof, had jurisdiction to make the order sought to be reviewed here. To sustain this contention, the plaintiff has cited us to a large number of California oases. We have carefully examined the authorities cited, and these authorities sustain plaintiffs contention, that the primary question here is, Did the defendant, as said district judge, have jurisdiction to make the order in question P But it is also insisted on behalf of the plaintiff that in this state district courts are courts of general jurisdiction, with jurisdiction to hear and determine •all controversies, and to grant all kinds of equitable relief, including the appointment of receivers. To this we answer that district courts, and the judges thereof, have not jurisdiction to appoint receivers in any and all actions that may be pending before them. They can only appoint a receiver in the classes of cases mentioned in section 4329 of the Bevised Statutes, and only in particular cases in the classes therein specified, prior to judgment, when it is made to appear that it is necessary in order to protect the rights of a party to the action, which he possesses to the thing in dispute. But it is a well-established rule that the plaintiff, the equities of whose bill have been fully met and denied, is not entitled to the appointment of a receiver, unless he overcomes the denials in such answer by further proof in support of his bill. In other words, where the equities of plaintiffs bill have been fully met and denied by a sworn answer on behalf of the defendant, the court has no discretion, and its appointment of a receiver in such case is unauthorized. (High on Receivers, 3d ed., sec. 24; Thompson v. Diffenderfer, 1 Md. Ch. 489; Henn v. Walsh, 2 Edw. Ch. 129; Crombie v. Order of Solon, 157 Pa. St. 588, 27 Atl. 710; Buchanan v. Comstock, 57 Barb. 568.) In this proceeding the pleadings and all of the evidence considered by the defendant, as district judge, when he made the order in question, were returned into this court. We have examined the evidence for the purpose of ascer
As to how far the evidence may be considered in a proceeding of this kind, the rule is correctly and succinctly stated in 4 Encyclopedia of Pleading and Practice, commencing at page-262, as follows: “An exception to the rule that the sufficiency of the evidence will not be reviewed is made when the question is-whether jurisdictional facts were or were not proved. This exception arises out of the most important office and function of the writ — the keeping of inferior courts and tribunals within proper bounds. If the decision of the inferior tribunal as to the sufficiency of the evidence to establish jurisdictional facts were not reviewable, the writ of certiorari would be of no avail as a remedy'against an assumption of jurisdiction. And, for the purpose of enabling the reviewing court to determine whether jurisdictional facts were established, it will require a return to-be made of the evidence upon which such facts are based.” In People v. Board of Delegates, 14 Cal. 479 (one of the principal authorities relied upon by the defendant here), the court-said t “On the other hand, the cases are numerous to the effect that, the review may be extended to every issue of law and fact involved in the question of jurisdiction, and that not only the record, but the evidence itself, when necessary for the determination of this question, must be returned. The latter is the more reasonable, and, we think, the true, rule.” In the case of People v. Board of Assessors, 39 N. Y. 81, the office of the writ of certiorari is defined in the following language: “That its office -extends, unquestionably, to the review of all questions of jurisdiction, power and authority of-the inferior tribunal to do the acts complained of, and all questions of regularity in the proceedings; that is, all questions whether the inferior tribunal has kept within the boundaries which are prescribed for it by
The record before us clearly shows that the assertion of title by the plaintiff to eight-elevenths of the interest claimed by him in the Skookum mining claim is based upon an administrator’s deed which has been adjudged by the district court below to be void, and which judgment has been affirmed in this court, thus showing conclusively that part of the interest claimed by him is without foundation. Further than that, his claim that he owned an eleven twenty-fourths interest in said mining claim, and that under one contract, by which he was to receive a consideration of $10,000 for such interest, he placed two deeds in escrow, in the same envelope, one conveying to the defendants an undivided one-eighth interest in said claim, the other conveying an undivided one-third interest in the same claim, to the same parties, is unreasonable and inconsistent with usual business methods; and this contention of the plaintiff, supported by his evidence alone, is positively and unequivocally contradicted by the evidence of three witnesses. The plaintiff has come into a court of equity, apparently with unclean hands, asking extraordinary equitable relief, the granting of which will probably be detrimental to the interests and rights of the defendants, and has failed to show himself entitled to such extraordinary relief. Our statute does not contemplate the appointment of a receiver under the facts disclosed by the return to the alternative writ heretofore granted in this proceeding; and the order made by the defendant, as district judge, appointing said receiver, was in excess of his authority, and unauthorized. Judgment will therefore be entered annulling that certain order herein reviewed, with costs to the petitioners.