Cummings v. Steele
| Decision Date | 28 November 1899 |
| Citation | 6 Idaho 666,59 P. 15 |
| Parties | CUMMINGS v. STEELE, JUDGE |
| Court | Idaho Supreme Court |
CERTIORARI-RECEIVER-NOTICE-VOID ORDER.-After appearance in the action, the defendant is entitled to notice of motion for the appointment of a receiver in the action and an order made by the judge after such appearance; without notice to the defendant, is without jurisdiction and void. Certiorari lies to annul an order appointing a receiver which was made on ex parte application after appearance of the defendant in the action.
(Syllabus by the court.)
Original proceeding by writ of review.
Order annulled. Costs awarded to plaintiffs.
George W. Tannahill and I. N. Smith, for Plaintiffs.
Certiorari is the remedy to review appointments of receivers. (Sweeny v. Mayhew, ante, p. 455, 56 P. 85, cases cited.) The appointment having been made without notice after appearance is void. (Idaho Rev. Stats., sec. 4892; Larsen v. Winder, 14 Wash. 109, 53 Am. St. Rep. 864, 44 P. 123 cases and citations; Fischer v. Superior Court, 110 Cal. 129, 42 P. 561, 562.) In Idaho the rules of equity prevail, where no specific provision obtains, and where there is any conflict on the procedure. (Idaho Rev. Stats., sec 4020.) Therefore, under authorities cited, notice was absolutely necessary and essential to the exercise of jurisdiction. A partnership for a term of years cannot be dissolved merely at will by one party. (1 Parsons on Contracts, 196, 205, at bottom; Parsons on Partnership, 3d ed., 496; Bradley v. Harkness, 28 Cal. 69, 78, 1st par.; Story on Partnership, ed. 1841, sec. 276; 1 Story's Equity jurisprudence, Redfield's ed. 1866, sec. 668.)
No brief filed by defendant.
This is a proceeding to review an order appointing one D. H. Haner receiver in an action brought in the district court in and for Nez Perces county by N. S. Soper, plaintiff, against Charles H. Cummings and S. T. Jones, defendants, made by the district judge after the defendants had appeared in the action. The motion for said order was heard, and the order made, without notice to the defendants. The said defendants commenced this proceeding to review said order on the ground that no notice of the application therefor had been given defendants, for which reason the district judge had no jurisdiction to make it. The original action was commenced in the district court, Nez Perces county, July 25, 1899. On August 2, 1899, said defendants appeared in the action, and filed their demurrer, after which, and on April 3, 1899 application ex parte was made for the order appointing a receiver, and the receiver appointed without notice to the defendant. The rule in regard to notice in such case is that after appearance such notice must be given, except in case of emergency, when the defendant has absconded, and material injury will result to plaintiff unless the order be forthwith made. No such showing was made in the case before us. The order was therefore made without jurisdiction, and therefore void. (See Rev. Stats., secs. 4020, 4892; High on Receivers, secs. 111-117, inclusive; Larsen v. Winder, 14 Wash. 109, 53 Am. St. Rep....
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Neil v. Public Utilities Commission of State of Idaho
...exercise of the jurisdiction to determine whether or not jurisdictional facts existed. (Sweeny v. Mayhew, 6 Idaho 455, 56 P. 85; Cummings v. Steele, 6 Idaho 666. 59 P. 15.) I it is clear, however, that in no event can evidence be examined, under this writ, further than to determine whether ......
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Hay v. Hay
...opinion in Neil v. Public Utilities Com., 32 Idaho 44, 178 P. 271. See, also, Sweeny v. Mayhew, 6 Idaho 455, 56 P. 85; Cummings v. Steele, 6 Idaho 666, 59 P. 15; First Nat. Bank of Weiser v. Washington County, Idaho 306, 105 P. 1053, 29 L. R. A., N. S., 400; Lansdon v. State Board of Canvas......
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Rowe v. Stevens
......Nor is. there any plain, speedy or other adequate remedy at law. (. Sweeny v. Mayhew, 6 Idaho 455, 56 P. 85; Cummings v. Steele, 6 Idaho 666, 59 P. 15.). . . The. plaintiffs are the persons "beneficially. interested" and are entitled to this court's ......
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First Nat. Bank of Pocatello v. Bunting & Co. Bankers
...... nor more than ten days' notice of such sale, as I think. it does, less than five days' notice is no notice at all. This court held in Cummings v. Steele , 6 Idaho 666,. 59 P. 15, that an order appointing a receiver, made on ex. parte application, without notice to the defendant, who. ......