International Life Underwriters, Inc. v. Second Judicial Dist. Court in and for Washoe County

• Decision Date: 26 May 1941
• Docket Number: 3335.
• Citation: 113 P.2d 616,61 Nev. 42
• Parties: INTERNATIONAL LIFE UNDERWRITERS, Inc., et al. v. SECOND JUDICIAL DIST. COURT IN AND FOR WASHOE COUNTY.
• Court: Nevada Supreme Court

113 P.2d 616

61 Nev. 42

INTERNATIONAL LIFE UNDERWRITERS, Inc., et al. v. SECOND JUDICIAL DIST. COURT IN AND FOR WASHOE COUNTY.

No. 3335.

Supreme Court of Nevada

May 26, 1941

Rehearing Denied July 30, 1941.

See 115 P.2d 932.

Original proceeding in prohibition by International Life Underwriters Inc., M. A. Ohlson, R. G. Collison, W. N. Kingsbury and George E. McKernon against Second Judicial District Court of the State of Nevada in and for the County of Washoe, the Honorable William McKnight, Judge, in which an alternative writ was issued and a return was filed. On respondent's demurrer to petition and motion to strike out petition.

Order in accordance with opinion.

DUCKER C.J., dissenting.

Clarence M. Hawkins, of Auburn, Cal., and Geo. E. McKernon, of Reno for petitioners.

W. M Kearney and Robert Taylor Adams, both of Reno, for respondent.

ORR Justice.

Petitioners ask for a writ of prohibition, and in their petition allege that of the 250,000 shares of common stock of the Pacific American Life Insurance Company there is issued and outstanding approximately 94,000 shares; that the petitioners are the holders and owners of approximately 40,000 shares of said stock; that because of the surreptitious, clandestine and collusive seizure by the receiver of the said Pacific American Life Insurance Company, the petitioners present the said petition as stockholders and in behalf of the corporation. Petitioners allege that with the exception of nine directors, a large majority of the holders of the outstanding stock are and were opposed to any receivership of said company; that the board of directors of said company is composed of seventeen; that nine directors of said company collusively, clandestinely and without notice to petitioners caused to be prepared a certain complaint naming themselves as plaintiffs along with other persons, and caused to be prepared a purported answer to said complaint; that the said nine directors clandestinely and collusively caused an attorney to be delegated and appointed secretly to appear in a certain action tried in the Second Judicial District Court of the State of Nevada, as attorney for the Pacific American Life Insurance Company and to admit the allegations of the said complaint and to consent to the appointment of a receiver; that said nine directors directed and authorized the said especially selected attorney to sign said answer, and that said attorney did, in following said instructions and not otherwise, sign same. It is alleged that the petitioners had no knowledge of the acts of the said nine directors, nor any notice thereof; that after the said complaint and said answer were prepared, without notice in any respect to the other eight directors, the said nine directors heretofore referred to, on Saturday, February 1, 1941, caused said complaint and answer to be filed in the office of the county clerk of Washoe County, Nevada. Petitioners further allege that promptly after the filing of said complaint and answer, without notice and without the service of summons on any person whomsoever, the said complaint and answer were presented to the Judge of Department 1 of said Second Judicial District Court, and thereupon, at once and without any hearing or taking of evidence, said Judge granted a motion for the appointment of a receiver of said Pacific American Life Insurance Company; that the said receiver, after qualifying under the terms and conditions of said order and after taking possession and control of the properties and affairs of the said Pacific American Life Insurance Company, seized and entered into the control of the said Pacific American Life Insurance Company, and threatens to and will remain in control of same for said court, unless said court is restrained from the alleged wrongful and illegal proceedings.

An alternative writ was issued February 13, 1941. A return was filed February 27, 1941.

Respondent has filed a demurrer to the petition, also a motion to strike. First, it is urged that the demurrer and motion should be upheld because it appears on the face of the petition that petitioners have a remedy by appeal or intervention. Appeal and intervention are not always speedy or adequate. A determination as to whether either or both remedies would be speedy or adequate in this case requires more than a mere inspection of the complaint.

The second ground of demurrer is the petition does not state facts sufficient to warrant the relief asked. Exhibit "A" attached to the answer contains a copy of the minutes, from which it is ascertained that the meeting of the directors at the time the decision was reached to ask for a receiver and to authorize an attorney to appear for the corporation was a regular meeting, of which it is presumed all directors would have notice. It is necessary to go to the return to learn these facts. Paragraph V of the petition, on page 3, alleges that nine directors, collusively, clandestinely and without notice to petitioners, held a meeting. The demurrer admits the allegations of the petition as to the clandestine and secret character of the meeting, which, if true, would nullify the proceedings instituted for the appointment of a receiver, and also render null and void other business transacted at such meeting. For this reason, the demurrer on the ground that the petition does not state sufficient facts is overruled. The same reasoning applies to the motion to strike, and said motion is denied.

In support of the issuance of the permanent writ the petitioners present the following points: (1) That the power and jurisdiction of the district court to appoint the receiver mentioned in the petition must be found in the statute, because a court of equity is without jurisdiction to appoint a receiver to wind up the affairs of a corporation and dissolve it; (2) there is no statute in the State of Nevada which empowers a district court to appoint a receiver for a corporation without a hearing; (3) there is no substantial or essential difference between Sections 1645 and 1646, N.C.L., and Sections 1785 and 1786, N.C.L., under consideration in the case of Golden v. District Court, 31 Nev. 250, 101 P. 1021; (4) that the complaint filed in the district court and attached as exhibit "A" to the petition does not constitute a cause of action within the jurisdiction of the district court, because: (a) there is no provision or statute recognizing a receiver by consent; (b) there is no allegation upon which to base any relief other than a receiver, relief incidental to receivership and dissolution, and this is insufficient to constitute a cause of action within jurisdiction; (5) the exhibit "A", being the complaint filed in the district court, shows upon its face that the purpose of the proceeding was to secure employment for the receiver and to hinder and delay creditors, and that such showing renders the entire proceeding illegal; (6) that to admit to the statute the operation necessary to sustain the jurisdiction of the district court in the instant action is to place the statute in controvention of Amendment XIV to the federal Constitution and in contravention of Article I, Section 8, of the Constitution of Nevada, and to take property without due process.

In the determination of the merits of the petition we are concerned with the sole question: Did the district court have jurisdiction to make the order complained of? We will dispose of the questions involved in the order presented by petitioners and hereinabove set out.

Courts are reluctant, in the absence of statutory authority, to assume they have jurisdiction to dissolve corporations; but it is admitted that the Legislature may confer such jurisdiction, and in this state such power is given in Section 1648, N.C.L. The suit in the district court of which petitioners complain was instituted under Section 1645, N.C.L., and not under Section 1786, N.C.L.; and it is equally apparent the action was not instituted under Section 8749, N.C.L. In the suit in the district court upon which these proceedings are based, the dissolution of the corporation is not asked, unless the court shall so order after determining that the affairs of said corporation cannot be put in shape for the return to it of the assets and property taken over by the receiver. Petitioners profess to see no difference between Section 1645 and related sections and Section 1786 and its related sections. It seems to us that the difference in the authority granted and procedure permitted is both apparent and real. In Section 1645 provision is made to permit a receiver to take control of a sick and ailing corporation whose malady is yet in a state where, by careful handling, such corporation has an excellent chance to shake off the malady and convalesce into a sound and going institution, in which event its management and property can be handed back to its directors and stockholders. When the provisions of Section 1785 are invoked, it is recognized by those asking the protection of its procedure that the malady afflicting the corporation has progressed to a point where it is hopeless, and the only remaining thing to do is to take advantage of the statute providing for such a corporation's demise, wind up its affairs and take care of the stockholders and creditors to the extent that the assets will permit. In assailing the procedure adopted and the action taken by the district court herein, the petitioners rely upon the cases of Hettel v. District Court, 30 Nev. 382, 96 P. 1062, 133 Am.St.Rep. 730; Golden v. District Court, 31 Nev. 250, 101 P. 1021; and State ex rel. Nenzel v. District Court, 49 Nev. 145, 241 P. 317, 43 A.L.R. 1331.

The Hettel and Golden cases, above referred to, were instituted under the provisions of Section 1786,...