Moshannon Nat. Bank v. Iron Mountain Ranch Co.

• Decision Date: 24 January 1933
• Docket Number: 1767
• Citation: 18 P.2d 623,45 Wyo. 265
• Parties: MOSHANNON NAT. BANK, ET AL. v. IRON MOUNTAIN RANCH CO., ET AL
• Court: Wyoming Supreme Court

18 P.2d 623

45 Wyo. 265

MOSHANNON NAT. BANK, ET AL. v. IRON MOUNTAIN RANCH CO., ET AL

No. 1767

Supreme Court of Wyoming

January 24, 1933

Rehearing Denied April 18, 1933, Reported at: 45 Wyo. 265 at 284.

ERROR to District Court, Albany County; VOLNEY J. TIDBALL, Judge.

Action by the Moshannon National Bank and others against the Iron Mountain Ranch Company and others, wherein the Wyoming Trust and Savings Bank, one of defendants, filed a cross-petition. From an order dismissing plaintiff's petition for want of prosecution, plaintiff appeals.

Affirmed.

For the plaintiff and appellants there was a brief by Tipton &amp McGowen and C. P. Arnold, of Laramie, Wyoming, and oral arguments by Mr. McGowen and Mr. Arnold.

Appellants brought this action below to foreclose a mortgage or deed of trust given to secure their bonds. They also asked the appointment of a receiver of the defendant mortgagor--a corporation, not a going concern, in default and insolvent. The record and abstract presented for review a series of rulings made below, which culminated in a dismissal of the case for want of prosecution. The errors assigned may be summarized as follows:

1. By a succession of orders, at first ambiguous and then final, the court denied plaintiffs and appellants the right to proceed with this action and suffered and permitted one of the defendants to oust them from prosecuting their litigation.

2. The court below denied the plaintiffs application for the appointment of a receiver.

3. The court below dismissed the plaintiffs from the case for lack of prosecution, with issues of fact and of law pending and undetermined.

The only testimony in the record is that taken on the application for a receiver. The issues presented here are issues of law. We submit the following authorities: On the question of the bondholder's rights, Tracy, Corporate Foreclosure (1930 Edition) pages 5 to 8 and page 30; Webb v. Vermont Central Railroad Co., 9 F. 973; Owens v. Ohio Cent R. Co., 20 F. 10; Wheelright v. St. Louis N. O. & O Canal Transp. Co., 53 F. 164; Farmers Loan and Trust Co. v. Northern P. R. Co., 66 F. 169; Linder v. Hartwell, 72 F. 320; Cochran v. Pittsburgh R. R. Co., 150 F. 682; Lowenthal v. Georgia, et al. R. Co., 233 F. 1010; Brown v. Denver Omnibus and Cab Co., 254 F. 560; Clay v. Selah Valley Irrigation Co., (Wash.) 45 P. 141; Cook on Corporations, 8th Edition, Vol. 4, Section 826 at page 3694; Crandel v. East Side Club, 180 N.Y.S. 814; Guaranty Trust Co. v. Green Cove R. R. Co., 139 U.S. 137, 35 L.Ed. 116.

On the question of a receiver: Anderson v. Mathews, 8 Wyo. 513; Barrett v. Green River and Rock Springs Live Stock Co., 26 Wyo. 379; Grieve v. Huber, 32 Wyo. 357.

On the question of the right of entry: Wyoming Revised Statutes 1931, Sec. 89-3601; Hastings v. Wise, (Mont.) 297 P. 482; Wyoming Revised Statutes 1931, Section 71-115; Jones on Mortgages, 8th Edition, Sections 2309, 2310, 887, 976, 6, 12, 16, 868, 869, 48; Owens v. Grastzel, (Md.) 132 A. 264; Huber v. State Bank, 32 Wyo. 357 at 377; Moncrieff v. Hare, (Colo.) 87 P. 1082; Fogerty v. Fayer, 17 Colo. 589; Sward v. Spray, (Iowa) 215 N.W. 736; Neway Building Co. v. Mortimor, 220 N.Y.S. 665; Grether v. Nick, (Wis.) 215 N.W. 521; Realty Co. v. Conrad, 216 N.Y.S. 400.

For the respondents, the Wyoming Trust and Savings Bank, and the Stock Growers National Bank, there was a brief by John W. Lacey, John U. Loomis and Edw. T. Lazear, of Cheyenne, Wyoming, and oral argument by Mr. Loomis.

This is a suit to foreclose a trust deed securing bonds in the total principal face amount of $ 150,000.00. The questions involved arise upon the pleadings. The trust deed provides that no bondholder shall have any right to bring suit for a foreclosure of the trust deed, or seek the appointment of a receiver or have any other remedy thereunder. The trustee is not required to take any action unless requested to do so in writing by not less than fifty per cent of the bonds outstanding. Certain of the bondholders, claiming to hold $ 21,800.00 in face amount of the bonds commenced this action against defendants. The Wyoming Trust and Savings Bank filed its cross-petition against The Iron Mountain Ranch Company, Diamond Cattle Company and Hannah Elizabeth Bosler. Various other pleadings were filed by the parties. The plaintiffs were without authority to bring the action under the terms of the Trust. Batchelder v. Water Co., (N. Y.) 29 N.E. 801; McClelland v. R. R. Co., (N. Y.) 18 N.E. 237; Seibert v. Minneapolis Ry. Co., (Minn.) 53 N.W. 1134; R. R. Co. v. Fosdick, 106 U.S. 47, 76; Crossthwaite v. Moline Plow Co., 298 F. 466; Allan v. Moline Plow Co., 14 F.2d 912; Muren v. Mining Co. (Mo.) 160 S.W. 835; Bank v. Mfg. Co., (N. C.) 97 S.E. 1; Mortg. Co. v. Ramsey, 49 F.2d 738. The letters with reference to the suggested resignation of the Trustee, although included in the record, are not a part of the record on appeal and should not be considered. The court acting within its proper discretion in the matter, properly denied the application for a receiver, there being no showing that such appointment would have been to the advantage of the parties. Beaumont v. Beaumont, (Pa.) 31 A. 336; Norris v. Lake, (Va.) 16 S.E. 663; Briggs v. Neal, 120 F. 224; Bates F. Proc., § 582; Baltimore Bargain House v. St. Clair, (W. Va.) 52 S.E. 660; Warren, et al. v. Pitts, (Ala.) 21 So. 494; Co. v. Conklin, 126 F. 132; Ford v. Taylor, 137 F. 149; Moore v. Bank, (Cal.) 106 F. 574. It is respectfully submitted that this appeal should be dismissed, no errors being shown by the record. In the event that the appeal is not dismissed, the order of the trial court appealed from should be affirmed.

Corthell, McCollough and Corthell, of Laramie, Wyoming, in support of motion to dismiss appeal.

The appeal should be dismissed as presenting no question of error for the consideration of this court. There were two sets of plaintiffs competing for the right to foreclose. Respondents are entitled to some relief in the way of simplification of the suit against them. No cause of action was alleged by the plaintiffs. 2 Jones Mtgs., Sec. 1452. It was not shown that plaintiffs were holders of bonds in due course. Hollsworth v. Co., 23 Wyo. 52; Bank v. Abbott, 30 Wyo. 98; Pennoyer v. Bank, 35 Wyo. 319. Plaintiffs have not alleged any legal obligation of the mortgagor to themselves. Hamilton v. Marshall, 41 Wyo. 157. Authority cited by plaintiff must be regarded largely as dicta upon the question involved in the case at bar. The trustee represents the secured bondholders; Avenius v. Tidball, 35 Wyo. 496, R. S. 71-219; Siebert v. Ry. Co., (Minn.) 53 N.W. 1134. The duties of a trustee are such as are imposed by the instrument under which he is to act; Stallings v. Thomas, (Ark.) 18 S.W. 184; McPherson v. Cox, 96 U.S. 404. The impropriety of the amendatory petition tendered by plaintiff is apparent from its face; Turner v. Hamilton, 13 Wyo. 408; Hill v. Supervisors, (Ohio) 10 So. 631, R. S. 89-1068. The pleading must contain a statement of facts constituting the cause of action in ordinary and concise language. R. S. 89-1004. Nothing was added to the original pleading by the proposed amendment. The common law remedy of re-entry in strict foreclosure has been superseded by our legislation; 2 Jones M. T., Sec. 1538-1570, 21 C. J. 894. There was no justification shown for the appointment of a receiver; Barrett v. Co., 28 Wyo. 379; Harle-Hass Co. v. Co., 19 Wyo. 35; Pereria v. Wulff, (Mont.) 272 P. 532; Northland Co. v. Melin Bros., (Minn.) 161 N.W. 407; Hoiles v. Watkins, (Ohio) 157 N.E. 557; Bushman v. Bushman, (Mo.) 279 S.W. 122. The appointment of a receiver is within the sound discretion of the court. Ins. Co. v. Crook, (Okla.) 289 P. 728; Bushalle v. Myers, (Colo.) 276 P. 972. The record does not sustain the claim that plaintiffs were denied any remedy to which they were entitled.

For respondents, Iron Mountain Ranch Company, Hannah Elizabeth Bosler, and the Diamond Cattle Company, there was a brief by Corthell, McCollough & Corthell, of Laramie, Wyoming, and oral argument by Mr. N.E. Corthell.

The specifications of error in substance are three:

1. That the plaintiffs, by original petition, presented allegations upon which the issue was joined by the answer of the trustee and the effect of the order of dismissal was to deprive the plaintiffs of the benefit of a hearing upon such issues.

2. That the court erred in denying leave to file the amendatory and supplemental petition tendered out of time by the original plaintiffs.

3. That the court erred in denying the application of a receiver. The appeal is ostensibly from the order of the court dismissing plaintiffs' petition. The question therefore, is whether the court, upon the motions made, is shown to have reached an erroneous decision, prejudicial to plaintiffs.

The respondents have moved to dismiss the appeal on the grounds that the Specifications of Errors do not show error in the decision appealed from; that by omitting to argue or discuss the merits of the order appealed from, they have waived any allegation of error in such decision. Dismissal of a petition for want of prosecution is authorized by the code (R. S 89-2204). Mulhern v. U. P. R. R. Co., 2 Wyo. 465; Sayles v. Wilson, 31 Wyo. 55, 63-68; King v. Giblin, 36 Wyo. 448, 458; Grieve v. Huber, 38 Wyo. 223, 232; Sutton v. C., St. P., M. & O. Ry. Co., 114 Wis. 647, 650. The only question before the court is the propriety of the order of dismissal. Roy v. Ry. Co., 9 Ala. 377, 63 So. 773; Darton v. Sperry, 71 Conn. 339, 41 A. 1054; Hahn v. McBride, (O. S.) 103 N.E. 760; Stein v. Goodenough, 73 N. J. L. 812, 64 A. 961; Smith v. Carter, (Wisc.) 122 N.W. 1035. An abuse of discretion must be made out and established by the one who asserts...