Hettel v. First Judicial District Court of Nevada

Decision Date08 August 1908
Docket Number1,763.
Citation96 P. 1062,30 Nev. 382
PartiesHETTEL v. FIRST JUDICIAL DISTRICT COURT OF NEVADA et al.
CourtNevada Supreme Court

Certiorari by Albert L. Hettel against the First judicial district court in and for Esmeralda county and Frank P. Langan, judge, to review orders made in the case of W. T. Hall against the Interstate Lumber & Mill Company. Orders annulled.

D. S Truman, for petitioner.

H. V Morehouse, for respondents.

NORCROSS J.

This is an original proceeding in certiorari to review certain orders of the trial court made in the case of W. T. Hall, Plaintiff v. Interstate Lumber & Mill Co., a Corporation, dissolving said corporation and appointing a receiver therefor.

The petition herein alleges: That the petitioner is a director of said corporation, and, also, that he is the administrator of the estate of Frank H. Hipp, deceased, which estate is the owner of about one-third of the capital stock of said corporation. That on or about the 3d day of March, 1908, said W. T. Hall, the owner of more than one-third of the capital stock of said corporation and a director therein, filed in the above-entitled district court a complaint or petition setting forth that said corporation has a capital stock of $100,000. That said W. T. Hall is the president and W. T Hall, Jr., is the secretary and treasurer of said corporation, who, together with F. R. Hall, A. C. Wood, and A. L. Hettel, petitioner herein, are the directors of said corporation. That 200 shares of the par value of $100 per share have been paid up, and the remaining 800 shares are in the treasury. That the assets of said corporation, if properly managed and controlled, are the sum of $103,142, and liabilities exist in about the sum of $33,544. That owing to the depressed conditions in business, and the inability of said defendant corporation at the present time to meet the demands made against it, the said corporation is in danger of its assets being wasted through attachment or litigation, and is liable at any time to be attached, and therefore be unable to carry on and continue its business, or be put to very large and useless expense by way of litigation, and its assets wasted thereby. By reason of these alleged facts, it was averred that said corporation should be dissolved, and that a receiver should be appointed to take charge of the business and affairs of said corporation, that its property may be preserved, its creditors paid, and its assets cared for. An order was prayed for accordingly to be made upon the filing of the complaint or petition. That in said action so instituted by said W. T. Hall, no summons has ever been issued, or service had upon said corporation, its officers or any person interested therein. That on the 25th day of February, 1908, on an ex parte application of W. T. Hall, and upon said complaint and before the filing thereof, the said district judge made an order appointing one E. S. Rose, receiver for said corporation, which order, after entitlement of court and cause, reads as follows: "Upon reading the verified complaint of the plaintiff herein, and it duly appearing to the court that it is a proper case wherein to appoint a receiver it is hereby ordered that E. S. Rose be appointed receiver in the above proceeding, with full power to take charge of the assets, control, and business of the Interstate Lumber & Mill Company, a corporation transacting business at Goldfield, in the county of Esmeralda, state of Nevada, and to immediately list and report all of the assets of said corporation and its entire liabilities, and to do any and all things as may be ordered and directed by this court, and that he execute a bond for the faithful performance of his duties as such receiver in the sum of $15,000.00. *** And the directors of said corporation and each of them are hereby restrained from exercising any of its powers, or doing any business whatever on behalf of said corporation, except through, by, and under the aforesaid receiver. [Dated] Feb. 25th, 1908. Frank P. Langan, Judge of the District Court, in and for the County of Esmeralda, State of Nevada. [Indorsed] Filed March 3, 1908. E. Hardy, Clerk, by A. C. Roach, Deputy." That thereafter and on the 14th day of March, 1908, ex parte and upon said complaint or petition, said district judge made an order confirming the appointment of said receiver, and dissolving said corporation, which order, after entitlement, reads, as follows: "Upon the verified complaint of the plaintiff, and the facts therein appearing sufficient, under section 94 of an act of the Legislature of the state of Nevada, entitled 'An act providing a general corporation law,' approved March 16, 1907, it is hereby ordered, adjudged, and decreed that the said defendant, the Interstate Lumber & Mill Company, a corporation, be and the same is hereby dissolved, and that the order heretofore made, appointing E. S. Rose receiver of said corporation, be and the same is hereby confirmed. *** And it is further ordered that within ten (10) days from the making of this order, the said receiver shall file in office of the Secretary of State of Nevada a duly certified copy of the order appointing him receiver, and a duly certified copy of this order. And it is further ordered that the said receiver shall publish in the Goldfield Daily Tribune *** the decree appointing him receiver. *** Frank P. Langan, Judge of said District Court. [Indorsed] Filed March 14, 1908. E. Hardy, Clerk, by J. B. Rourke, Deputy."

The petition herein further avers that for the reasons aforesaid said orders so made were without, and in excess of, the jurisdiction of said district court and the judge thereof and that petitioner herein applied to said district court and the judge thereof, upon due notice and proper pleadings therefor served upon said W. T. Hall, to vacate and annul each of said orders, and the same, coming on to be heard on the 16th day of April, 1908, was denied. Petitioner herein further avers that the complaint upon which said orders were based fails to state facts sufficient to give file court jurisdiction to make said orders, and that petitioner has no appeal, nor other plain, speedy, and adequate remedy. In response to the writ, respondent certified up the original papers and files in the court below, and filed herein a...

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9 cases
  • Schrader v. Third Judicial Dist. Ct. in and for Eureka County
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