Pitts v. New Mammoth Gold-Min. Co.

• Decision Date: 30 July 1901
• Citation: 23 Utah 623,65 P. 1076
• Court: Utah Supreme Court
• Parties: ISABELLA M. PITTS et al., Respondents, v. NEW MAMMOTH GOLD MINING COMPANY et al., Appellants

65 P. 1076

23 Utah 623

ISABELLA M. PITTS et al., Respondents, v. NEW MAMMOTH GOLD MINING COMPANY et al., Appellants

Supreme Court of Utah

July 30, 1901

Appeal from District Court, Salt Lake County.--Hon. Ogden Hiles Judge.

Action by Isabel M. Pitts and another against the New Mammoth Gold-Mining Company and others. From a decree directing the sale of the property of the defendant mining company, and determining the amount and priority of liens thereon, the defendants National Bank of the Republic and Frank Knox trustee, appeal.

The record herein shows that an action entitled John R. Foulks v The New Mammoth Gold-Mining Company was commenced on November 25, 1899. The plaintiff in that action, among other things alleged substantially that the defendant company is wholly insolvent and without funds to pay its debts and obligations, large amounts of which are due and unpaid; that besides the plaintiff, who is a stockholder, there are a large number of other creditors of the company--employees--who have not been paid their wages since October 1, 1899; that these creditors threaten and are about to file liens, and to commence proceedings to enforce the same; that the capital stock of the corporation is non-assessable, and that therefore it has no means to raise funds to pay its liabilities; that all the corporate property has heretofore been conveyed by trust deed to creditors to secure claims; and that unless a receiver be appointed to take charge of the property of the corporation, and to sell the same under the directions of the court, and apply the proceeds in discharging the indebtedness of the company, the property will be dissipated and lost. The prayer, interalia, was for the appointment of a receiver. On the same day the defendant company, by its attorney, entered its appearance in the action, waived issuance and service of summons, consented to the appointment of a receiver, and thereupon a receiver was appointed. On the same day (November 25) another action, to foreclose a mortgage, was commenced, in which Isabel M. Pitts was plaintiff, and the New Mammoth Gold-Mining Company, E. G. Rognon, the National Bank of the Republic, and Frank Knox, trustee, et al., were defendants. On December 28 following, the defendant bank and Knox filed an answer and cross-complaint in the last-mentioned action, in which cross-complaint a trust deed was set forth, and foreclosure thereof prayed for. Following the commencement of the first action a number of other independent suits were brought against the defendant company, all for the purpose, as appears, of subjecting the corporate property to the payment of the various claims of the complainants, cross-complainants, and interveners. These several actions were on January 27, 1900, consolidated for the purpose of trial, and were thereafter tried under the title of Isabel M. Pitts v. The New Mammoth Gold-Mining Company, a corporation, et al.; and upon trial an order was entered directing the receiver to sell the corporate property of the defendant company, and apply the proceeds in payment of the various claims in amounts and according to priority as found by the court. The defendants National Bank of the Republic and Knox appealed from the decree and judgment.

AFFIRMED.

W. R. Hutchinson, Esq., for appellants.

Messrs. William A. Lee and A. C. Bishop for respondents.

BARTCH J., delivered the opinion of the court. Miner, C. J., and Baskin, J., concur.

OPINION

BARTCH, J.

The principal question presented on this appeal relates to the appointment of the receiver. The...