In re Rich Hardware Co.

• Decision Date: 07 April 1920
• Docket Number: Civil 1772
• Citation: 21 Ariz. 394,188 P. 875
• Parties: In re RICH HARDWARE COMPANY. v. SHIRLEY CHRISTY, Assignee for the Estate of RICH HARDWARE COMPANY, Appellee CRUNDEN-MARTIN MANUFACTURING COMPANY, a Corporation, et al., Appellants,
• Court: Arizona Supreme Court

188 P. 875

21 Ariz. 394

In re RICH HARDWARE COMPANY.

CRUNDEN-MARTIN MANUFACTURING COMPANY, a Corporation, et al., Appellants, v. SHIRLEY CHRISTY, Assignee for the Estate of RICH HARDWARE COMPANY, Appellee

Civil No. 1772

Supreme Court of Arizona

April 7, 1920

APPEAL from an order of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Appeal dismissed.

STATEMENT OF FACTS.

The appellee, Shirley Christy, became the statutory assignee of the Rich Hardware Company, a partnership, by deed of assignment duly made and recorded as of date of October 1 1917, and entered upon the duties of the trust after qualifying, all as prescribed by part 12, title 6 "Assignments for the Benefit of Creditors." Civ Code Ariz. 1913. The appellants were creditors of such insolvent estate, and became parties to the assignment by filing their claims therein.

This proceeding was commenced on the fifteenth day of May, 1919 praying for an order removing Shirley Christy as such assignee for the reasons stated in the said petition, principally because such assignee has mismanaged the trust in the particular that he has continued the business as a going concern, and has not liquidated the business as the assignment contemplates, and because he has paid certain expenses incurred by operating such business, and thus neglects and refuses to perform the trust.

On August 4, 1919, the court formally heard the parties and such proof as was offered on the issues formally joined in their respective pleadings, and intimated orally that the assignee's duty under the trust is to close the estate when conditions would permit, within a reasonable time, stating that the assignee "has done fairly well to the extent that he has paid off forty per cent; . . . then, if an attempt is not made to make a proper adjustment (after reasonable time has expired), this court be appealed to again."

The court made and filed formal findings of fact and entered a formal judgment to the effect that petitioners take nothing; that the assignee recover his costs; and "that the assignee within a reasonable time dispose of all assets and make distribution to creditors."

The petitioners formally moved for a new trial, which was denied by the court. From the said order and from the order refusing a new trial, the petitioners gave notice of appeal to this court, and in due time filed such appeal here.

Messrs. Townsend, Stockton & Drake and Messrs. Chalmers, Stahl, Fennemore & Longan, for Appellants.

Mr. J. E. Morrison, for Appellee.

OPINION

CUNNINGHAM, C. J. (After Stating the Facts as Above.)

The parties have not raised any question as to the right to appeal from the orders involved. Paragraph 1787, Revised Statutes of Arizona of 1913, provides:

"If any assignee becomes unsuitable to perform the trust, refuses or neglects so to do, or mismanages the property, the judge of the superior court may, upon the application of the assignor, or one or more of the creditors, upon reasonable notice to all parties interested, by publication or otherwise, as such judge may direct, remove such assignee, and in case of vacancy by death or otherwise, shall appoint another in his place who shall have the same powers and be subject to the same liabilities as the original assignee."

The application referred to in said statute was made by the creditors named in such application to the judge of the superior court to remove the assignee because of the mismanagement of the estate intrusted to him. Upon due investigation and consideration, the judge refused to remove the assignee at the time, and, in effect, dismissed the application without prejudice to renewal of the application at a later date.

The same situation arose under a statute of Oregon of like effect with our paragraph 1787, supra. In re Goldsmith Estate, 12 Or. 414, 7 P. 97; on rehearsing, 12 Or. 414, 9 P. 565. In the opinion reported in 12 Or. 420, 9 Pac., on page 566, the court said:

"It was a mere summary affair (the trial of the application to remove the assignee), except so far as the parties attempted to dignify it by making up an issue, having a referee appointed, and by going through with all the formality of taking depositions and having a finding of facts and law and hearing before the court. Such a prolix affair could never have been contemplated by the legislative assembly when it passed the act. It would consume too much of the estate in fees and expenses, and giving the right of appeal to this court would delay its settlement beyond all reasonable forbearance. At all events, I am satisfied that the right to such an appeal does not exist unless especially given. I am of the opinion that, where a court or judge is directed by statute to exercise a particular function in a manner different entirely from the ordinary mode of procedure by action or suit, no appeal to this court from the determination of such court or judge will lie unless provided for in the act itself, for the reason that the general statutes of this state regulating appeals to this court do not, in my judgment, extend to such a case, and no such right exists except by...