Benepe-Owenhouse Co. v. Scheidegger
| Decision Date | 22 May 1905 |
| Citation | 80 P. 1024,32 Mont. 424 |
| Parties | BENEPE-OWENHOUSE CO. v. SCHEIDEGGER. |
| Court | Montana Supreme Court |
Appeal from District Court, Gallatin County; W. R. C. Stewart Judge.
Action by Benepe-Owenhouse Company, a corporation, against Jacob Scheidegger. From an order overruling a motion to vacate an order appointing a receiver, defendant appeals. Reversed.
Walrath & Patten, for appellant.
John A Luce, for respondent.
On March 2, 1903, Benepe-Owenhouse Company, a corporation entered into a contract in writing with one Jacob Scheidegger, by the terms of which certain real estate and personal property were leased to Scheidegger for a term of five years. In January, 1905, this action was commenced by the company against Scheidegger. The complaint sets forth the contract at length, and then alleges that at the time of the making of the contract there was a well-established custom and usage in Gallatin county among the farmers and dairymen that under an agreement such as the one mentioned above settlements for moneys received from the sale of live stock, pork, dairy, and poultry products shall be made monthly at the end of each month, and for crops raised upon the ranch a division thereof shall be made within a reasonable time after such crops are harvested. It is then alleged that this contract was entered into in view of such custom and usage, and that, acting thereon, the defendant during the year 1903 settled with the plaintiff according to such custom and usage, and that such settlements were made and continued up until February 1, 1904. The value of the live stock and of the dairy, pork, and poultry products sold during 1904 is then set forth, and the increase on such live stock is specified. It is also alleged that there was grown upon the ranch during that year 340 tons of hay, more or less. The complaint then alleges that at the time of the commencement of this action there was due to the plaintiff from the defendant $569.22, more or less, as the plaintiff's share of the money derived from the sale of live stock, pork, dairy, and poultry products; that about November 1, 1904, the defendant repudiated the agreement, refused to pay over to the plaintiff its share of the income from the business carried on, and appropriated to his own use the entire proceeds from such business, and threatens to continue to do so, and threatens to sell or otherwise dispose of the hay raised upon the ranch during that year, and to appropriate the proceeds to his own use, and has ousted the plaintiff from any participation whatever in the business so conducted; that the plaintiff has demanded of defendant that he pay over to plaintiff the amount due it, and to divide the hay grown upon the ranch during 1904, but defendant has refused to comply with such demand, and unlawfully excludes the plaintiff from any further participation in the business. It is alleged that the defendant is continuing to carry on the dairy and poultry business and to sell the products thereof, and to sell the pork and pork products, and to appropriate the proceeds therefrom to his own use, and that, unless restrained by the court, he will continue so to do. It is then alleged that the defendant is insolvent, and wholly irresponsible, and cannot respond in damages, and without the interposition of the court the plaintiff's share of the proceeds from such operations will be entirely lost. The prayer of the complaint is for an accounting, for the appointment of a receiver to take charge of the business pending the litigation, that an injunction issue restraining the defendant from interfering in any manner with the property involved in the controversy, that the agreement be declared rescinded, and the property restored to the plaintiff. The complaint is verified by F. L. Benepe, president of the company, and such verification is as follows: "That he has read the foregoing complaint, and knows the contents thereof; that the facts therein stated are true to the best knowledge, information, and belief of affiant." This complaint was filed on the 12th day of January, and summons issued. On the 13th day of January, and before the service of summons, the judge of the district court appointed a receiver to take charge of the property in controversy and to manage and operate the same.
The bill of exceptions recites that the order appointing the receiver was made without notice to the defendant, and without any hearing of the cause upon its merits; that no affidavit or oral testimony were offered or heard by the said judge in support of such application, and that the order was made solely upon the complaint and the averments therein contained. On February 4, 1905, the defendant made a motion to have the order appointing the receiver vacated. The motion is based upon the ground that the complaint does not state facts sufficient to constitute a cause of action, or to entitle the plaintiff to have a receiver appointed; that the facts stated are not sufficient to justify the court or judge in making an order appointing a receiver without notice; that the complaint is verified upon information and belief only, and not positively; and that the complaint fails to allege particular facts, or any facts or circumstances, showing the necessity for the appointment of a receiver without notice. Upon the hearing this motion was overruled, and from the order overruling such motion the defendant appeals.
It is not seriously contended that upon this appeal this court should be called upon to pass upon the sufficiency of the complaint to state a cause of action. This record does not show any appearance on the part of the defendant, other than his motion to vacate the order appointing the receiver. As the appointment of a receiver or the issuing of an injunction is ancillary to the action for an accounting, if the complaint does not state facts sufficient to constitute a cause of action for an accounting, of course the ancillary relief would necessarily have to be...
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