In re Lewis

• Decision Date: 06 January 1894
• Citation: 35 P. 287,52 Kan. 660
• Parties: In the matter of the Petition of H. W. LEWIS, for a Writ of Habeas Corpus
• Court: Kansas Supreme Court

35 P. 287

52 Kan. 660

In the matter of the Petition of H. W. LEWIS, for a Writ of Habeas Corpus

Supreme Court of Kansas

January 6, 1894

Original Proceeding in Habeas Corpus.

PETITION by H. W. Lewis, for release from custody on a commitment for contempt. The opinion herein, filed January 6, 1894, states the material facts.

Petitioner remanded.

Campbell & Dyer, for petitioner.

Holmes & Haymaker, for respondent.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

H. W. Lewis asks to be discharged from the custody of an officer who holds him in pursuance to an order of the district court of Sedgwick county, committing him for contempt. By this proceeding in habeas corpus, the petitioner challenges the power of the district court, which was exercised in the appointment of a receiver in the case of Price v. The International Loan & Trust Company et al., pending in the same court. If the district court had jurisdiction of the subject-matter of the action and of the parties thereto, and power to make the appointment, any error committed in the exercise of such power cannot be reviewed nor revised in this proceeding. The action in which the receiver was appointed was brought by the stockholders against the International Loan & Trust Company, its officers and directors, as well as the Equity Trust Company, of Wichita. It was alleged that the International Loan & Trust Company had been engaged for a number of years in making loans in the name of the company, securing the same by mortgages, which were negotiated and sold to eastern purchasers, charging a commission for the making of such loans, which commissions were represented by notes and mortgages, and that the chief profit resulting to the company was from the sale of proceeds of the second, or commission, mortgages. It is alleged that an extensive business had been done by the company, and that it had assumed vast obligations by the guaranty of loans. It is alleged that the business of the company has been grossly mismanaged, by reason of which it has become insolvent, and that the petitioner, H. W. Lewis, who was the president of the company, as well as the secretary and treasurer, have had the principal charge of the business; that these three men were directors, while the other directors were relatives and creatures of and subservient to these three directors, and in fact that the company was being managed for the individual and personal benefit of the president, secretary and treasurer of the corporation, who were rapidly absorbing all of the assets of the company, to the detriment and injury of its stockholders and creditors. It was alleged that the president was using the company's money to pay off and discharge his individual and personal liabilities, with the knowledge and consent of the other directors, all of whom were under his influence and control. It was also charged that the president, secretary, and treasurer, together with two other of the directors of the company, had formed a new corporation, called the Equity Trust Company, of Wichita, and that they had fraudulently, and against the interests of the stockholders of the International company, conveyed to the Equity company all the real property belonging to the International company, as well as a portion of its personal property; and further, that they are endeavoring to divert the business which legitimately belongs to the International company to the Equity company. The plaintiffs ask that the Equity Trust Company should be adjudged and decreed to hold in trust for the International Loan & Trust Company all the tax certificates, commission mortgages or real property which the petitioner and other officers have caused to be transferred to the Equity Company. They also ask to enjoin the defendants from transferring any mortgages, tax certificates, choses in action or other property belonging to the International Loan & Trust Company, or in which it had any interest; and, finally, that a receiver be appointed to take charge of the property and affairs of the International Loan & Trust Company during the pendency of the action and the hearing of the cause, and that such receiver may be empowered to do all that is necessary in winding up the affairs of the corporation, as well as for all other and proper relief as might be just and equitable in the premises. After the receiver was appointed, he sought to take possession of the property confided to him, when the petitioner resisted all demands of the receiver, and refused to surrender the property belonging to the company. For this refusal, he was held to be in contempt of court, and was committed until he should purge himself of such contempt.

Whatever may be the actual facts in the case, those alleged were certainly sufficient to give jurisdiction for the appointment that was made. At this time we cannot consider whether the power was wisely and correctly exercised, nor whether the testimony justified the finding and order made. When the power is shown to exist, the inquiry on habeas corpus...