Glein v. Miller

• Decision Date: 17 January 1920
• Citation: 45 N.D. 1,176 N.W. 113
• Parties: GLEIN v. MILLER.
• Court: North Dakota Supreme Court

45 N.D. 1

176 N.W. 113

GLEIN

v.MILLER.

Supreme Court of North Dakota.

Jan. 17, 1920.

Syllabus by the Court.

Where a vendor, under a contract for deed which contained no acceleration clause, attempted to cancel the contract under chapter 151, Sess. Laws 1917, declaring in the notice that the contract would be canceled unless the whole of the remaining installments were paid within six months, it appearing that the defendant had made substantial payments, and that at the time of the first attempted cancellation the only default was in the nonpayment of taxes; and where, after the expiration of six months from the first notice, the vendor served notice upon the purchaser to vacate the premises, and began forcible entry and detainer proceedings in justice court, which were transferred to the district court; and where, upon an ex parte showing, the district court appointed a receiver to take possession of the property, collect rents, etc.-it is held, the order appointing the receiver was improvidently made.

Though an order appointing a receiver be improvidently made, it may not be violated with impunity, and one may be adjudged guilty of contempt for its violation.

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

Action by Jens Glein, guardian of the person and estate of John H. Stammen, incompetent, against Mrs. A. L. Miller. From an order denying a motion to dismiss a receivership and contempt proceedings entered after a hearing upon an order to show cause why defendant should not be punished for contempt, she appeals. Part of order denying defendant's motion for dismissal of the receivership proceedings reversed, and such proceedings dismissed, and the part adjudging defendant guilty of contempt affirmed.McGee & Goss, of Minot, for appellant.

John J. Coyle, of Minot (Edward T. Burke, of Bismarck, on oral argument), for respondent.

BIRDZELL, J.

This is an appeal from an order denying a motion to dismiss receivership and contempt proceedings, which was entered after a hearing upon an order to show cause why the defendant and appellant should not be punished for contempt. The facts necessary to an understanding of the case are as follows: On January 3, 1916, one John Stammen entered into a contract with the defendant to sell to her certain property in the city of Minot for a consideration, as expressed, of “$7,000 and other valuable considerations,” payable $1,000 in cash, $500 on the 3d days of January, 1917, 1918, and 1919, respectively, and the balance of $4,500 on January 3, 1920. There was no acceleration clause in the contract, but it was expressly provided that upon the default in making any payment, or in the performance of the other covenants, the party of the first part might, at his option, by written notice, declare the contract canceled, whereupon the second party agreed to peaceably surrender the possession of the premises. In a notice of cancellation dated October 23, 1918, Glein, who appears herein as plaintiff in the capacity of guardian of Stammen, incompetent, set forth a default arising through the neglect of the defendant to pay the 1916 and 1917 taxes, amounting to $631.30, and declared an election to treat as due the whole of the balance on the contract, amounting to $5,765.35. The defendant is notified that for failure to pay the latter amount, together with the taxes, within six months, the contract will be canceled. After the expiration of six months from this notice a notice to vacate was served up the defendant, which was followed by an action in forcible entry and detainer in justice court. The answer of the defendant in that action set forth her claims under the contract, and denied that the contract had been canceled. It pleaded the lack of jurisdiction of the justice court to entertain a forcible entry and detainer action on account of the equitable title being involved, and the action was ordered transferred to the district court by order dated May 24, 1919.

On May 29th, upon an ex parte application of the plaintiff, and solely upon the affidavit of the plaintiff's attorney, together with the transcript and papers filed in justice court, an order was entered, appointing a receiver to take possession of the property, collect rents, etc. It appears that the defendant did not heed the order appointing the receiver and comply with it by turning over possession, whereupon, on June 18th, an order to show cause was issued, directing the defendant to appear and show cause why she should...