Dale v. Duffy

• Court: North Dakota Supreme Court
• Writing for the Court: CHRISTIANSON
• Citation: Dale v. Duffy, 44 N.D. 33, 176 N.W. 97 (N.D. 1919)
• Decision Date: 23 December 1919
• Parties: DALE v. DUFFY et al.

44 N.D. 33

176 N.W. 97

DALE

v.DUFFY et al.

Supreme Court of North Dakota.

Dec. 23, 1919.

Syllabus by the Court.

Under the provisions of section 7588, Comp. Laws 1913, a receiver may be appointed, among others, in an action between partners or others jointly owning or interested in property on the application of the plaintiff, or of any party whose right to or interest in the property is probable, and when it is shown that the property is in danger of being lost, removed, or materially injured. Receivers may also be appointed in all other cases where receivers have heretofore been appointed by the usages of courts of equity.

An appeal from an order appointing a receiver is not triable anew in the Supreme Court.

For reasons stated in the opinion, the order appointing a receiver in this case is affirmed.

Appeal from District Court, Ward County; Leighton, Judge.

Action by Fred V. Dale against James J. Duffy and others. From an order appointing a receiver, defendants appeal. Affirmed.F. F. Wyckoff, of Stahley, for appellants.

McGee & Goss, of Minot, for respondent.

CHRISTIANSON, C. J.

This is an appeal from an order appointing a receiver. It appears that on or about January, 1918, the plaintiff and the defendant Duffy entered into a contract whereby the defendant agreed to farm during the seasons of 1918 and 1919 certain lands which the plaintiff held under a lease. In connection with such farming operations a large tractor was obtained. This controversy involves the ownership of such tractor.

On this appeal appellants have argued two questions: (1) That the evidence fails to show that the plaintiff has any interest in the tractor; and (2) that, if he has such interest, he has an adequate remedy by means of an action for accounting, and by the enforcement by execution of any judgment he might obtain in such action.

[1] We are entirely satisfied that upon the record before us we would not be justified in disturbing the order of the trial court upon either of the grounds. Under our statute:

“A receiver may be appointed by the court in which an action is pending, or by a judge thereof:

1. In an action * * * between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of any party whose right to or interest in the property or fund or the proceeds thereof is probable, and when it is shown that the property or fund is in danger of being lost, removed or materially injured. * * *

6. In all other cases where receivers have heretofore been appointed by the usages of courts of equity.”

Section 7588, C. L. 1913.

[3] Upon the hearing of the application for the appointment of a receiver many affidavits were submitted upon the questions involved. The affidavits submitted by the plaintiff were to the effect and tended to show that he is the owner of a one-half interest in the tractor; that the relations between the parties in connection with which the tractor was purchased have terminated; that the present...