Ford v. Taylor
| Decision Date | 30 March 1905 |
| Docket Number | 799. |
| Citation | 137 F. 149 |
| Parties | FORD v. TAYLOR et al. |
| Court | U.S. District Court — District of Nevada |
Key Pittman and J. K. Chambers, for complainant.
Campbell Metson, Jackson & Brown (James H. Budd, of counsel), for defendants.
This suit was brought in the state court upon what may be designated a grubstake contract, which it is claimed in the bill of complaint constituted a copartnership between plaintiff and defendants in the location of certain designated mining claims in Goldfield Mining District, Nev. An injunction was issued and a receiver appointed. Subsequently the cause was removed to this court, and motions made to vacate said orders, especially the order appointing a receiver, upon several grounds: (1) Because the said receiver was improperly appointed; (2) that said receiver was appointed ex parte and without notice; (3) that the bill of complaint which is made the basis of said appointment fails to state facts sufficient to authorize the appointment by a court of equity; (4) that all of the equities alleged in the bill of complaint have been fully denied. 'Said motion will be made upon the records and papers on file in this suit, as well as upon the verified answer of defendants, which for the purpose of this motion will be used as an affidavit, without waiving any objections to the sufficiency of the complaint ' Upon the hearing of this motion the complainant obtained leave to file an amended bill of complaint, which materially changes some of the terms of the contract as alleged in the original bill. The answer of defendant contains a specific denial of all the allegations in the original complaint, and it was agreed should, for the purposes of this hearing, be treated as an answer to the amended complaint.
In disposing of the motion to vacate the appointment of the receiver, it is only deemed necessary to refer to a few points. In Maynard v. Railey, 2 Nev. 313, 320, the court announced certain rules applicable to the appointment of receivers, viz., that while the court has the power to appoint a receiver on an ex parte application, when a proper showing is made, the appointment of a receiver ought not to be made without notice, except in cases of emergency. This court is of opinion that, when an ex parte application for the appointment of a receiver is made, the proper practice is to make an order requiring the defendant to appear and show cause why the application should not be granted, and, if a proper showing is made as to the necessity or emergency of such an appointment, to appoint a temporary receiver, until the day for hearing on the rule to show cause, in order to afford the plaintiff the protection to which he may fairly be entitled under the averments in his complaint. In Edwards on Receivers, 77, the author said:
'A motion for a receiver is generally made on the answer of the defendant; but it may be made on the affidavits before answer, where the complainant can clearly satisfy the court that he has an equitable claim to the property in controversy and that a receiver is necessary to preserve the same from loss.'
The appointment of a receiver is a matter within the sound discretion of the court, and each case must be determined upon its own conditions and circumstances, and in exercising this right the courts should ever keep in mind that a...
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