E. Martin & Co. v. Kirby

• Decision Date: 02 August 1911
• Docket Number: 1,938.
• Citation: 117 P. 2,34 Nev. 205
• Parties: E. MARTIN & CO. v. KIRBY et al. J. & A. FREIBERG v. KIRBY et al.
• Court: Nevada Supreme Court

117 P. 2

34 Nev. 205

E. MARTIN & CO. v. KIRBY et al.

J. & A. FREIBERG v. KIRBY et al.

No. 1,938.

Supreme Court of Nevada

August 2, 1911

Appeal from District Court, Esmeraldo County; Theron Stevens, Judge.

Actions by E. Martin & Co. and by J. & A. Freiberg, copartners against W. B. Kirby and another. From judgments for plaintiff in each action, defendant the United States Fidelity & Guaranty Company appeals. Affirmed.

In an action brought by George F. Blatt, as plaintiff, v. The Cobweb Company, a corporation, as defendant, in the First judicial district court in and for Esmeralda county, praying for the appointment of a receiver to take charge of the business and assets of said defendant corporation, the Cobweb Company, and that they be administered in a manner likely to result in the greatest benefit to all the creditors of said defendant corporation, by and under the direction and orders of the court, the said court made the following order "This cause coming up for hearing on the 27th day of June, 1908, on motion of T. L. Foley, attorney for plaintiff the defendant being represented in court by D. S. Truman, and it appearing to the court that a writ of attachment has been sued out and levied upon the stock of goods of the defendant corporation for the sum of four thousand dollars, and that the assets so attached are all the defendant has with which to pay its liabilities, and that said assets are more than sufficient to pay all the liabilities if handled and disposed of in a judicious manner; that there are other numerous creditors who are liable to bring suits and attachments further against the defendant, all of which will cause great danger of waste to the assets of the defendant; that the business of the said defendant is now on a paying basis and by conservative management can be made to pay all the debts of the company, and the same being fully considered by the court: It is ordered, that a receiver be appointed to take charge of the goods, assets rights, and credits of the defendant and all thereof, and administer them to the best interests of all parties concerned by and under the orders of this court; that W. P. Kirby, being a resident agent and manager of the said defendant corporation, the Cobweb Company, is hereby appointed to act as such receiver in that regard; and it is further ordered that said receiver shall file a good and sufficient bond in the sum of $10,000, to be approved by this court, and that upon the approval of said bond and the taking of the proper oath of office that the said property of the defendant, the Cobweb Company, shall be turned over by the sheriff of Esmeralda county to the said receiver to be by him handled and administered as herein ordered."

Pursuant to said order the said W. P. Kirby qualified as receiver and on the 30th day of June, 1908, executed and filed his bond as such trustee in the penal sum of $10,000 with the United States Fidelity & Guaranty Company (appellant herein) as surety, the condition of which said bond reads: "The condition of this obligation is such that whereas by an order of the above-entitled court, duly made and entered on the 27th day of June, 1908, the above-bounden W. P. Kirby was duly appointed receiver of the defendant, the Cobweb Company, a corporation, upon his executing a bond according to the law, in the said sum of ten thousand dollars; now, therefore, if the said W. P. Kirby, as such receiver, shall faithfully execute the duties of his trust, according to law, then this obligation to be void, otherwise to remain in full force and effect."

The receiver published for four weeks a notice of his appointment, and called for the presentation of all claims against the corporation as provided in section 95 of the general corporation act (St. 1903, p. 155). On the 26th day of October, 1908, the said receiver filed a petition in said court praying for an order to be allowed to sell the entire property of the corporation in bulk, and on the 26th day of December, following, the said property was sold pursuant to an order of court based on said petition, and on the same day an order was entered confirming the sale. On the 30th day of December, 1908, the receiver presented to the court his final account and petition for discharge. On the 18th day of January, 1909, objections to the final account and discharge of the receiver were filed by various creditors, which final account and the objections interposed thereto coming on to be heard, the court rendered a lengthy opinion in writing concluding with the following order: "It is therefore ordered that the objections to the report of the receiver and to his discharge and the release of the sureties on his bond be sustained, and that such report be not approved." Thereafter and on the 12th day of June, 1909, upon application of certain creditors for leave to sue the said receiver and his surety, the following orders were entered by the court: "In the above-entitled cause, it appearing to the court from the records, files and proceedings had herein, that J. & A. Freiberg, copartners, having duly filed their claim in the sum of six hundred forty-five dollars ($645.00) with the receiver herein, W. P. Kirby, as a creditor of the defendant, the Cobweb Company, within the time required by order of this court, and having appeared by their attorney, John F. Kunz, and objected to the report and application for discharge of the said receiver, W. P. Kirby, and said report and application for discharge having been denied and an order so made by the court, and it further appearing that thereupon the said creditor J. & A. Frieberg, by their attorney, duly filed an application and petition praying for an order for the payment of their said claim, or in lieu thereof asking leave to institute suit for the recovery or their said claim, a copy of which application was served on Messrs. Thompson, Morehouse & Thompson, as attorneys for said receiver, and due and proper notice of the hearing thereof having been given and the said attorneys for the said receiver being present in court at the hearing of said application, and satisfactory and sufficient cause now appearing to the court therefor: It is ordered, that the claim of the creditor J. & A. Freiberg be allowed in the sum of six hundred forty-five dollars ($645.00), with interest, and that...