Chemung Mining Co. v. Hanley

• Decision Date: 18 July 1905
• Citation: 11 Idaho 302,81 P. 619
• Parties: CHEMUNG MINING COMPANY v. HANLEY
• Court: Idaho Supreme Court

81 P. 619

11 Idaho 302

CHEMUNG MINING COMPANY v. HANLEY

Supreme Court of Idaho

July 18, 1905

ORDER OR DECISION DENYING MOTION TO APPOINT A RECEIVER-APPEALABLE-POWER OF SUPREME COURT TO APPOINT RECEIVER-APPLICATION FOR APPOINTMENT OF RECEIVER-DENIED.

1. Under the provisions of section 9, article 5 of the constitution of Idaho, the order or decision of a district court or judge denying a motion for the appointment of a receiver is an appealable order or decision.

2. Under the provisions of said section of the constitution this court has the power to appoint a receiver to act pending the litigation.

3. Under the facts as presented by the record on this application for the appointment of a receiver, held, not sufficient to warrant such appointment and the application is denied.

(Syllabus by the court.)

APPLICATION in an action by the Chemung Mining Company against Kennedy J. Hanley for the appointment of receiver pending the litigation. Denied.

Application denied. Costs of this proceeding awarded to defendant.

George Turner, John P. Gray and Albert Allen, for Plaintiff, file no brief.

W. E. Borah and M. A. Folsom, for Defendant, file no brief.

SULLIVAN J. Stockslager, C. J., AILSHIE, J., concurring.

OPINION

SULLIVAN, J.

This is an original application to this court for an order appointing a receiver to collect and receive the proceeds, amounting to over $ 300,000, of a certain judgment and decree rendered in the circuit court of the United States for the district of Idaho northern division, on the tenth day of May, 1904, in a certain action wherein Kennedy J. Hanley was complainant and Charles Sweeney, F. Lewis Clark and the Empire State-Idaho Mining and Developing Company were the defendants, and for an order directing and requiring said Hanley to assign and transfer said judgment and decree and all moneys adjudged to be paid thereby to said receiver, and enjoining and restraining said Kennedy J. Hanley, his agents and attorneys, from in any manner assigning or transferring said judgment except to such receiver, and from in any manner collecting or receiving said judgment and from in any manner interfering with such receiver in the collection thereof. This application was heard upon the affidavit of George Turner, Esq., and upon the transcript on appeal in this action. The complaint in this action was filed December 3, 1901. The action was brought by the plaintiff, the Chemung Mining Company, against the defendant, Kennedy J. Hanley, to recover from said Hanley a one-eighth interest in and to the Skookum mining claim, situated in the Yreka mining district, Shoshone county. We shall hereafter refer to the Chemung Mining Company as the Chemung company and to the Empire State-Idaho Mining and Development Company as the "Empire company."

It is alleged, among other things, in the complaint, that said Hanley procured the title to said one-eighth interest in said mining claim as trustee or agent for the plaintiff corporation on or about August 1, 1897, and has since that time fraudulently and wrongfully refused to convey the same to complainant, which allegations are denied by the defendant, and defendant averred that he purchased said one-eighth interest for and on his own behalf. The ownership of that one-eighth interest is the main issue in this action. It appears from the record that the Chemung company was organized by the said Sweeney & Clark under the laws of the state of Washington on the fifth day of August, 1896, and for the purpose, among other things, of buying, selling, acquiring and operating mines and mining claims within the United States; that its capital stock consisted of five hundred thousand shares of the par value of $ 5 each; that Charles Sweeney, F. Lewis Clark and the defendant, Kennedy J. Hanley, were the owners of all of the stock of that corporation except a few shares held by employees of said Sweeney & Clark in order to qualify them as directors of said corporation. The defendant, Kennedy J. Hanley, owned one hundred thousand shares of said stock.

In limine, we are met with two questions. The first is as to whether an order of a district court refusing to appoint a receiver pending the litigation is an appealable order. Under the provisions of section 9, article 5 of our state constitution, this court has jurisdiction to review, upon appeal, any decision of the district court or the judges thereof. An order granting or refusing a motion for the appointment of a receiver is a decision, and such decision is appealable; therefore the order of the district court denying the appointment of a receiver in this case is an appealable order.

The second question is: Has this court power to appoint a receiver in this case? Under the provisions of section 9 of our constitution, supra, the supreme court has original jurisdiction to issue writs of mandamus and other writs therein named, and also is given authority to issue all writs necessary or proper to the complete exercise of its appellate jurisdiction.

In Pacific Ry. Co. v. Ketchum, 95 U.S. 1, 24 L.Ed. 347, the supreme court of the United States held that that court had power under section 716 of the United States Revised Statutes, to appoint a receiver. The provisions of that section after specifying some writs which the court may issue, provides that it may have power to issue all writs not specially provided for by statute, which may be necessary for the exercise of its jurisdiction. The provisions of that statute are substantially the same as the provisions of said section 9, article 5 of our constitution. (See, also, High on Receivers, 3d ed., sec. 41; Goddard v. Ordway, 94 U.S. 672, 24 L.Ed. 237; 20 Am. & Eng. Ency. of Law, 62.) This court has the authority to appoint a receiver in the exercise of its appellate jurisdiction.

The Empire company was a corporation organized and existing under the laws of the state of New York, and was organized and controlled by said Sweeney & Clark. Sweeney was the manager of the said corporation from the date of its organization in the latter part of 1897 or early part of 1898, up to and including a part of the year 1900, and was the controlling spirit of the Chemung company during the time that the litigation was going on between Hanley and Sweeney and Clark, and the Chemung company and the Empire company, which litigation was carried on in the state and United States courts, as shown by the cases of People ex rel. Chemung Min. Co. v. Cunningham, 6 Idaho 113, 53 P. 451. Hanley v. Sweeny et al., 109 F. 712, 48 C.C.A. 613, Hanley v. Beatty, U.S. Dist. Judge, 117 F. 59, 54 C.C.A. 445, Sweeney et al. v. Hanley, 126 F. 97, 61 C.C.A. 153, and the Empire State-Idaho Min. etc. Co. v. Hanley, 198 U.S. 292, 25 S.Ct. 691, 49 L.Ed. 1056.

On September 19, 1898, the Chemung company executed and delivered to the Empire company its certain deed conveying to the Empire company all of the property and assets of the Chemung company of whatsoever kind or nature and wherever situated. Said deed contains the following, among other, provisions:

"This indenture made this nineteenth day of September, in the year of our Lord, one thousand eight hundred and ninety-eight, by and between the Chemung Mining Company, a corporation organized and existing under the laws of the state of Washington, and having its principal place of business in the city and county of Spokane, state of Washington, the party of the first part, and the Empire State-Idaho Mining and Developing Company, a corporation organized and existing under the laws of the state of New York, and having its principal place of business in the city and county of New York, state of New York, the party of the second part, witnesseth:

"Whereas, the stockholders of said party of the first part, at a special meeting of said stockholders, duly called for that purpose, duly adopted the following resolutions: 'Resolved: That the action of the board of trustees of Chemung Mining Company, accepting the offer of the Empire State-Idaho Mining and Developing Company to purchase the whole of the property and assets of the Chemung Mining Company of whatsoever kind or nature and wherever situated and particularly the following described lode mining claims: the 'Jersey Fraction,' 'Lilly May,' 'Carriboo,' 'Goodluck,' and 'Butte Consolidated' lode mining claims, designated by the surveyor general as lot No. 1220, embracing a portion of section twelve (12) in township forty-eight (48) north, of range two (2) east, Boise meridian, and of the unsurveyed public domain, in the Yreka mining district, Shoshone county, state of Idaho containing eighty-nine acres and eight hundred and one thousandths of an acre of land, more or less, for a more particular description of the boundaries of which said lode mining claims reference is hereby made to the record of the patent therefor, issued by the government of the United States of America, and recorded in the office of the recorder of the general land office in volume 294 at pages 397 to 402, inclusive; also all of the right, title and interest of the Chemung Mining Company, the same being an undivided one-third interest of, in and to the Skookum lode mining claim.

"4. Also all of the other assets and property of the said party of the first part of whatever kind or nature and wherever situated."

While a specific description of said one-third interest in Skookum is given in said deed, after that follows the general grant of "all other assets and property of the said party of the first part of whatever kind or nature and wherever situated." This was an enlargement on the specific description, and included all property and assets of the Chemung company of every nature and kind wherever situated. It is clear to me from the resolution of...