Northland Pine Company v. Melin Bros. Inc.

• Decision Date: 23 February 1917
• Docket Number: 20,241 - (307)
• Citation: 161 N.W. 407,136 Minn. 236
• Parties: NORTHLAND PINE COMPANY v. MELIN BROS. INCORPORATED, AND ANOTHER
• Court: Minnesota Supreme Court

161 N.W. 407

136 Minn. 236

NORTHLAND PINE COMPANY v. MELIN BROS. INCORPORATED, AND ANOTHER

Nos. 20,241 - (307)

Supreme Court of Minnesota

February 23, 1917

Action in the district court for Hennepin county to recover $17,974.06 and to foreclose by sale the mechanics' liens upon the premises described, and for the appointment of a receiver to take charge of the premises, buildings and material on behalf of the lien claimants. Plaintiff obtained an order to show cause why a receiver should not be appointed to protect and manage the premises in behalf of the lien claimants. From an order, Hale, J., granting plaintiff's motion for the appointment of a receiver, defendants appealed. Reversed.

SYLLABUS

Enforcement of mechanic's lien -- appointment of receiver.

1. A receiver may be appointed in an action to foreclose a mechanic's lien, providing there is a sufficient showing that it is necessary to the protection or preservation of the property.

Enforcement of mechanic's lien -- evidence insufficient.

2. The showing in this case was not sufficient to justify the appointment of a receiver.

Harlan P. Roberts and E. Luther Melin, for appellants.

Elijah Barton, for respondent.

OPINION

BUNN J.

This action was brought to foreclose a mechanic's lien for lumber, cement and other building materials furnished by plaintiff at the request of defendant Melin Bros Incorporated, for the construction of certain flat buildings upon lots in Minneapolis owned by defendant E. Luther Melin. Upon the complaint and an affidavit plaintiff moved for the appointment of a receiver to take charge of the property, to manage the same, together with the improvements thereon, for the benefit of all persons having valid mechanics' lien claims against said property. After a hearing the court appointed a receiver under a $5,000 bond to take possession of and manage the property, including the improvements and the material on the premises furnished for the erection of the buildings, "in such manner as will best conserve the interests of all persons having" valid liens against the property, until such time as the court might otherwise order. Defendants Melin Bros., Incorporated, and E. Luther Melin appeal from the order.

Two questions are presented: (1) Can a receiver be appointed under any circumstances in an action to foreclose a mechanic's lien? (2) If so, did the circumstances in this case justify the appointment of a reciever? We dispose of these questions in the order stated.

1. In this state, while the lien itself is purely a creature of statute, an action to enforce it is an ordinary civil action, proceeding according to the usual course of the law, and governed by the same rules of practice and procedure as any other similar action, except as expressly modified by the statute itself. Finlayson v. Crooks, 47 Minn. 74, 49 N.W. 398, 645. Equitable principles are applicable in enforcing the lien. Ness v. Davidson, 49 Minn. 469, 52 N.W. 46. It has been held in a few cases in other states that a receiver of the rents and profits cannot be appointed in a mechanic's lien action in the absence of a statute authorizing such appointment. Stone v. Tyler, 173 Ill. 147, 50 N.E. 688; Meyer v. Seebald, 11 Abb. Pr. (N.S.) 326, note; (Contra, Webb v. Van Zandt, 16 Abb. Pr. 314, note); Pratt v. Tudor, 14 Tex. 37. These cases are manifestly not in point, as the receiver in the case at bar was not to take the rents or profits, but merely to conserve the property and the material on hand, pending the action. We hold that the court had the power to appoint a receiver for these purposes, if the facts showed that it was necessary for the protection or preservation of the property.

2. The appointment of a receiver to take possession of property pendente lite is a matter resting largely in the discretion of the court. This discretion is not an arbitrary discretion but one to be exercised as an auxiliary to the attainment of the ends of justice. Bacon v. Engstrom, 129 Minn. 229, 152 N.W. 264, 537. A receiver will be appointed...