Grieve v. Huber

Citation38 Wyo. 223,266 P. 128
Decision Date09 April 1928
Docket Number1479
PartiesGRIEVE v. HUBER, ET AL. [*]
CourtUnited States State Supreme Court of Wyoming

APPEAL from District Court, Natrona County; CYRUS O. BROWN, Judge.

Action by Harriett T. Grieve against Paul Huber, the Central Trading Company, and others. From an order granting plaintiff's application for the appointment of a receiver, defendant Central Trading Company, appeals.

Affirmed.

S.E Phelps, for appellant.

The trial court erred in overruling exceptions to service and jurisdiction, Const. Co. v. Mullins, (Ark.) 64 S.W 225; the service was defective, Harrison v. Timber Co., 14 Wyo. 256; Min. Co. v. Schirmer, 64 Ill 108; Rixke v. Company, (Mo.) 70 S.W. 265; Co. v. Co., 21 O. C. Ct. 229; receivers may be appointed in mortgage foreclosures, Anderson v. Matthews, 8 Wyo. 513; Smith Rec'rs. p. 50. An action was not pending after placed in final judgment; receivership is beneficial remedy, Banking Co. v. Mahoney, (Nebr.) 61 N.W. 594; jurisdiction terminates with judgment, Loan Assn. v. Chase, (Ia.) 91 N.W. 507. A receiver cannot be appointed in a proceeding for that purpose alone, 6184 C. S.; Murray v. Court, (Calif.) 63 P. 191; Villa v. Light Co., (Nebr.) 94 N.W. 136. The trial court was without authority to appoint a receiver after judgment, Co. v. Castleman, 187 F. 921; Sullivan v. Algrem, 160 F. 366; there was no showing that plaintiff was without an adequate remedy at law, Bushman v. Bushman, (Mo.) 229 S.W. 122; Smith Rec'rs. p. 26; there was no authority for receivership during redemption period, Nathen v. Steinmeyer, (S. C.) 35 S.E. 731; the application was not made in a pending action and is, therefore, invalid, Jones (7th Ed.) Sec. 1526; Anderson v. Matthews, 8 Wyo. 513; High Rec'rs. Sec. 17; Hoiles v. Watkins, (Oh.) 157 N.E. 557; 6184 C. S. Application was insufficient in statement of facts; there was no showing of insolvency, Jones Mtgs. 1542; application was insufficient as to showing of property value, Boom Co. v. Co., (Wash.) 74 P. 53; Edwards v. City of Cheyenne, 19 Wyo. 140; Bank v. Bank, 24 Wyo. 432; there was no showing as to possession, High Rec'rs. 660; receiver's possession is subject to prior liens, Williams v. Marmer, (Ill.) 151 N.E. 880; mortgagor was entitled to rents and profits during redemption period, Young v. Stewart, (Ia.) 207 N.W. 401; Huber v. Gaines, (Ia.) 209 N.W. 412; Grether v. Nick, (Wis.) 213 N.W. 304; unpaid taxes not ground for receivership, Nathan v. Steinmeyer, supra. Absence of remedy at law must be shown by statement of facts, Hoiles v. Watkins, supra; no depreciation of security was shown, Bank v. Stephens, (Calif.) 79 P. 379; Paine v. McElroy, (Ia.) 34 N.W. 615; Swan v. Mitchell, (Ia.) 47 N.W. 1042; the service was defective, 5688 C. S.; Rush v. Davenport, (Tex.) 34 S.W. 380; Swilley v. Co., (Tex.) 46 S.W. 387; Fitzpatric v. Dorris Bros., (Tex.) 284 S.W. 303; there was no showing why service was not made on the corporation, 5631 C. S.; Harrison v. Co., 14 Wyo. 256; Rixke v. Co., (Mo.) 70 S.W. 265; the return is insufficient; Yowell v. Mace, (Mo.) 290 S.W. 96. The action of the court violated appellant's constitutional rights, Art. 1, Sec. 6, Wyo. Const., Art XIV, Sec. 1, U.S. Const., Risser v. Hoyt, (Mich.) 18 N.W. 611; Co. v. Donovan, (Mich.) 62 N.W. 359; mortgagee is endeavoring to reach property not covered by her lien, Co. v. Heidelbach, 24 L.Ed. 144; Norfor v. Busby, (Wash.) 53 P. 715; Howe v. Briden, (Ia.) 206 N.W. 814; appellant is not a party to the foreclosure proceedings; default not ground for receivership, Jones 1516, 5 Thompson R. P. p. 778; Simpson v. Ferguson, (Calif.) 44 P. 484. Mortgagor is entitled to possession until redemption period expires, Powers v. Pense, 20 Wyo. 337; Robinson Co. v. Davis, 26 Wyo. 484; there was no authority to appoint a receiver after judgment, 5875 C. S., 6184 C. S.; Tichenor v. Collins, 45 N. J. L. 123; Clark Rec'rs. Sec. 35 and 36; Kerr Rec'rs. p. 156; Jones Mtgs. (7th Ed.) 1526; State v. Judicial Dist., (Nev.) 241 P. 317. Rent during redemption period belonged to appellant, West v. Conant, (Calif.) 34 P. 705; Hazeltine v. Granger, (Mich.) 7 N.W. 74; Ins. Co. v. Broecher, (Ind.) 77 N.E. 1092; Tumlin v. Van Horn, (Ga.) 35 S.E. 264; Hermann v. Thomas, (Tex.) 143 S.W. 195, except where mortgage property is in danger of being lost or materially injured, Parker v. Coe, (Ia.) 205 N.W. 502; Durband v. Ney, (Ia.) 191 N.W. 385; Young v. Stewart, supra; Robinson v. Davis, supra. Receivership will not be used to prejudice junior lien holders, Gilman v. Co., 23 L.Ed. 405, Tiffany R. P. p. 2433; Teal v. Walker, 28 L.Ed. 415; appropriation of rents by receivership was violation of defendant's rights and is forbidden by Art. 1, Sec. 5, Wyo. Const. It was improper to augment mortgagee's property by receiver, 4582 C. S.; the court was without jurisdiction over defendant or its property, Kerr, Sec. 4, p. 36.

Curran & Cobb, for respondent, filed no brief.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

The Central Trading Company is the appellant in this case. On October 3, 1925, Harriett T. Grieve, the respondent herein, commenced an action against Paul Huber and others to recover judgment for $ 52,212.19 upon certain promissory notes executed by Huber, and to foreclose a mortgage given to secure these notes on Lots 14, 15, 16, and 17 in Block 5, in Casper, Wyoming. It appears from the petition that this mortgage was given on August 6, 1923, to pay the unpaid portion of the purchase price of the property therein described and that the property was subsequently transferred by warranty deed from Paul Huber and wife to the appellant. Though the petition in the cause named the appellant as one of the defendants, the summons issued in the cause at that time was not, for some reason which does not appear, served upon the appellant. Notwithstanding that fact a judgment was entered in the cause on July 7, 1926, foreclosing the mortgage and ordering a sale of the premises. An order of sale was issued and the property was sold to Harriett T. Grieve, respondent herein. The sale was confirmed on January 10, 1927. Thereafter, on May 4, 1927, Paul Huber filed a motion to set the sale and the confirmation thereof aside, for the reason that no appraisement of the property had ever been made. This motion was granted on May 25, 1927. Thereafter, on June 11, 1927, the respondent filed an application in the cause for the appointment of a receiver for the property mortgaged as above stated, and on the same day caused a summons to be issued in the case, to be served on the appellant, by which the appellant was notified to appear in the action and defend, and that an application for the appointment of a receiver had been made. The summons and a copy of the petition were duly served upon the defendant on June 11, 1927. Thereafter, on July 7, 1927, the appellant appeared in the cause by what is called a "special appearance," raising certain objections hereafter mentioned. These objections were overruled, and the court made an order granting the application for the appointment of a receiver. The appeal herein was taken from that order. Other facts will be mentioned later.

1. The return of the Sheriff on the summons issued on June 11, 1927 shows that it was served on "Central Trading Company, Alma Huber, agent." It is contended that the return on the summons should affirmatively show that Alma Huber was the authorized and proper agent upon whom service for and on behalf of the corporation could be made, and that, inasmuch as this does not appear, the court had no jurisdiction over the appellant herein. This point was not raised at the time that it appeared in the cause, or at all, except in the specifications of error, and it was probably too late to do so then. 3 C. J. 755. In any event we think the appellant waived the point when it appeared in the case. In the paper which it filed, designated as "special appearance," appellant stated that it appeared specially for the purpose of objecting to the jurisdiction of the court over appellant "to grant Mrs. Grieve, the plaintiff, any relief or assistance as against" it, for the following reasons: First, because the summons issued and served on June 11, 1927, upon the Central Trading Company was issued in a cause in which final judgment was rendered on July 7, 1926, making it unlawful to enter another final judgment therein; second, because plaintiff wrongfully obtained possession of the premises in controversy, as mentioned in the case of State ex rel. Grieve v. District Court, (Wyo.) 37 Wyo. 169, 260 P. 174, and because this court in that case, entered an alternative writ of prohibition forbidding the District Court from restoring possession to the Central Trading Company; third, because the application for the appointment of a receiver did not state facts sufficient to give the court jurisdiction to do so. Appellant accordingly prayed that the summons served upon it might be quashed; that the application for a receiver made by plaintiff be dismissed, and "for such other and further relief as may be equitable." We think that the appellant thereby made a general and not a special appearance. No question is raised, or could well be raised, as to jurisdiction over the subject matter. Jurisdiction over the person is, aside from appearance, obtained by serving the proper process in the manner required by law upon persons or parties subject to be sued in a particular action. If that is done, jurisdiction of the person is complete. 7 R. C. L. 1038, 1039; 15 C. J. 786, 799. In exceptional cases parties may not be subject to be sued in a particular action or court, such as in the case of ambassadors, or persons within the jurisdiction of the court only temporarily, but who are...

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