O'Laughlin v. Prockish

• Decision Date: 10 April 1920
• Docket Number: 22,623
• Parties: JOHN O'LAUGHLIN, Appellee, v. J. A. PROCKISH and SADIE PROCKISH, Appellants
• Court: Kansas Supreme Court

189 P. 383

106 Kan. 616

JOHN O'LAUGHLIN, Appellee, v. J. A. PROCKISH and SADIE PROCKISH, Appellants

No. 22,623

Supreme Court of Kansas

April 10, 1920

Decided January, 1920.

Appeal from Ellis district court; ISAAC T. PURCELL, judge.

Order affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RECEIVER--Jurisdiction of Judge to Appoint Receiver at Chambers--Land in Another County. When the order appointing a receiver was applied for the petition had been filed, and the order of appointment and summons were served on the defendants two days later. Eleven days thereafter a motion to vacate the order was taken up in open court and continued two days and then denied. Held, that the judge at chambers although in a county other than the one where the land was situated, had jurisdiction to make the order of appointment.

2. SAME--Notice of Application for Appointment of Receiver. While notice and opportunity to be heard should have been given the defendants before making the appointment, the order therefor was not void for lack thereof, and the record shows nothing brought forward on the hearing of the motion to vacate to require setting such order aside.

3. SAME--Sufficient Bond Given by Receiver. The kind of bond which section 272a of the civil code provides may be required was not given, but one more advantageous to the defendants was executed, and the failure to give the former was not sufficient ground for holding the appointment void or for setting it aside.

4. SAME--Interested Party Should Not be Appointed Receiver. The person appointed as receiver was an employee of the plaintiff but does not appear to have been personally interested in the action. Held, that while hardly a proper person to select his employment by the plaintiff did not avoid the appointment or require his discharge.

A. D. Gilkeson, of Hays, Lee Monroe, Guy L. Hursh, E. R. Sloan, and C. M. Monroe, all of Topeka, for the appellants.

E. A. Rea, and J. P. Shutts, both of Hays, for the appellee.

OPINION

WEST, J.:

The plaintiff applied to the judge of the district court for the appointment of a receiver, alleging that the defendants were occupying the improvements on his farm and claiming the right to harvest the crop of wheat growing thereon, and were unlawfully keeping him out of possession to which he was immediately entitled; that the defendants were without means; and that the plaintiff would be without any adequate remedy at law if they were permitted to harvest the crop, which would be matured in about three weeks. The petition was filed on June 7, 1919, and on the same day the court appointed William Obley receiver of the crops and of the vacant untilled ground on the farm, authorizing and directing him to take charge of the property, to harvest the crop and care for it and have it thrashed, to market it subject to the further direction of the court, and to put in such crops on the unoccupied land as might be suitable. The receiver gave bond to the state of Kansas for the use and benefit of the defendants in the sum of $ 5,000, reciting that if he should well and faithfully perform his services and well and truly account to the court for the moneys had by him in virtue of the appointment, it should be void, otherwise of force.

The defendants moved to vacate the order of appointment, alleging that it was made without jurisdiction and without notice; that Obley was not a proper party because interested in the outcome of the action; that no proper bond had been filed, and that the order adjudicated the issues involved without the intervention of a jury. On the hearing of the motion Obley testified that he farmed other land of the plaintiff and did some other work for him on a salary, such as taking care of cattle and feeding them; that on being appointed receiver he cut the wheat and thrashed it, paid the grocery bill for the food for the men and their wages, and that he put the proceeds in the bank in the name of one of his bondsmen, and had cut all the wheat worth cutting, putting 420 bushels in the granary for the landlord, and selling the remaining 480 on the market. The motion for his discharge was denied, and the defendants appeal from this and from the order of appointment.

The plaintiff has filed no brief. The defendants' counsel contend that the judge exceeded his power in appointing a receiver; that he had no jurisdiction of the subject matter or the parties, and had no authority to make the appointment in an ex parte proceeding at his chambers outside the county; that the province of a jury was usurped, and that the order was issued without notice and without a hearing.

In Feess v. Bank, 84 Kan. 828, 115 P. 563, it was said that it is only in cases of the greatest emergency that courts are warranted in tying up business or property or in taking property from the owners without notice to the opposing parties, but it was also said:

"In this instance the appointment that was made would not have been justified even if notice had been given." (p. 834.)

It must be remembered that no complete business or going concern was taken over by the receiver in this case, but the appointment involved only the maturing wheat crop and some fallow ground, leaving the defendants in full possession of everything else.

It is argued that the action had not been commenced and summons was not served until two days after the receiver was appointed and that the application had not been filed when the appointment was made; also, that the judge had no power at his chambers outside of the county to make the order; that a receivership is only an ancillary matter at most, and that in an ejectment case like this the defendant's right to a trial by jury cannot be taken away by an order of this sort. It is said that the receiver was appointed to take possession of the farm, or in other words, to take from...