Pyeatt v. Prudential Ins. Co.
| Decision Date | 15 April 1913 |
| Docket Number | Case Number: 2590 |
| Parties | PYEATT v. PRUDENTIAL INS. CO. et al. |
| Court | Oklahoma Supreme Court |
¶0 1. RECEIVERS--Appointment--Jurisdiction. Under Comp. Laws 1909, sec. 5772 (Rev. Laws 1910, sec. 4979), the district judge at chambers is vested with jurisdiction to appoint a receiver in a cause pending in another county within his district.
2. SAME--Notice--Necessity. Where the petition for the appointment of a receiver fails to state facts sufficient to show that the delay which would result in giving notice of the application to the adverse party would defeat petitioner's rights or result in injury to him, it is error for the court to appoint a receiver without notice.
Rennie, Hocker & Moore, for plaintiff in error.
Wm. H. McNeal and C. M. Oakes, for defendants in error.
¶1 On February 13, 1911, Alvin F. Pyeatt, as guardian of five certain minor children named Cash, plaintiff in error, sued Jennie C. Estus, A. L. McDonald, the Prudential Life Insurance Company of Newark, N. J., T. H. Vaughn, A. P. Cash, and the Deming Investment Company, in the district court of Garvin county. The petition, after alleging Pyeatt to be their present, and defendant A. P. Cash to be their former guardian, substantially states that on January 20, 1910, said minors were each the owner of an undivided one-fifth interest in certain lands (describing them) inherited from their mother Alice Cash, a duly enrolled citizen of the Choctaw Nation of three-fourths blood; that on said day said Cash as guardian aforesaid petitioned the county court of Garvin county for the sale of all said land for certain reasons therein set forth; that on February 18, 1910, the court entered a decree as prayed, pursuant to which said Cash undertook to sell said land to defendant A. L. McDonald for $ 28,000 cash, and reported said sale to said court, where the same was later confirmed; that thereafter said Cash, pursuant thereto, executed to said McDonald deeds of conveyance thereto purporting to convey him all the right, title, and interest of said minors therein; that on the same day said McDonald executed to the defendant Jennie C. Estus warranty deeds purporting to convey to her in fee simple all of his title to said land, which said deeds were placed in escrow pending the payment to said Cash, as guardian, said sum of $ 28,000; that long prior to the execution of said deeds from Cash to McDonald and from McDonald to Estus she executed a mortgage thereon to the defendant Prudential Life Insurance Company for $ 15,000, and, at the same time, another for $ 1,500 to the Deming Investment Company, all of which were thereafter duly recorded; that said court was without jurisdiction to order a sale of said land for certain reasons therein set forth; that the same were fraudulent and void for certain other reasons stated, and prayed that the same be canceled, together with certain other mortgages executed and delivered by the said Estus to the Deming Investment Company and defendant Vaughn as commission on the deal. After service of summons, in chambers at Norman in Cleveland county, on March 18, 1911, came said Prudential Insurance Company and presented its petition in said cause to R. McMillan, a judge of said court, and thus made known to the court in substance that theretofore, on August 25, 1910, for the valuable consideration of $ 15,000 paid by it to said Estus, she and her husband made, executed, and delivered to this defendant their promissory note payable in five years thereafter to this defendant and secured the same by a mortgage on said lands; that the same was duly filed for record and thereby became a first lien on said land and an equity therein to the extent of said sum; that thereafter plaintiff's petition was filed alleging said mortgage to be illegal and void and its lien of no force and effect and praying that the same be canceled; that after receiving said $ 15,000 said Jennie C. Estus passed the same to the defendant A. L. McDonald, who deposited the same in the First National Bank of Maysville to the credit of defendant A. P. Cash, who was then guardian of the minor plaintiffs; that petitioner made said payment in good faith and claims to be an innocent purchaser for value to the extent of the interest conveyed by said mortgage; that about January 1st said Cash, then guardian, purchased from the defendant T. H. Vaughn out of the proceeds of said $ 15,000 two certain promissory notes for $ 1,919, each of which are now under his control in his personal capacity; that about that time said Cash was discharged as guardian aforesaid and the plaintiff Pyeatt appointed his successor, whereupon said Cash paid over to him about $ 8,000, a part of said $ 15,000, as belonging to said minors, leaving in said bank the sum of $ 150 only, and charges that the difference has been expended between them and no part of said $ 15,000 has been tendered back to the petitioner. The petition further states that, in the event the court should find plaintiff entitled to recover and cancels said deeds and mortgages, petitioner would be entitled to a return of the $ 15,000, which, it charges, Cash and Pyeatt, guardian, are threatening to dissipate, transfer, and place beyond the jurisdiction of the court and will do so to its irreparable injury; and prays that a receiver be appointed to take charge of said $ 15,000 or its proceeds in the hands of either of the parties or both of them. This petition was verified by the affidavit of attorney for the petitioner to that fact and that petitioner is a nonresident of the state and was absent therefrom; that he knew the contents of the petition and that the facts therein set forth were within his personal knowledge and true to the best of his knowledge and belief. The record further discloses that on the same day in acting thereupon without notice the court found the allegations of the petition to be true and appointed a receiver as prayed. On March 22, 1911, after notice, said Pyeatt, as guardian, filed in said cause his motion to vacate the order appointing the receiver, which was overruled. The order follows:
"This cause coming on to be heard on the 1st day of May, 1911, on plaintiff's motion to vacate the appointment of the receiver, the hearing on said motion having on the 22d day of March, 1911, been continued from Norman, Okla., to this place and for this date, the court finds that said appointment was made without notice of the application having been given the plaintiff, and made on the face of the application, without further evidence being offered, and the court being now fully advised in the premises doth hereby refuse to vacate the appointment of the receiver made at the city of Norman, in the county of Cleveland, in the state of Oklahoma, on the 18th day of March, 1911, and overrules said motion, and reaffirms his appointment made at said time."
¶2 Plaintiff brings the case here. Insisting on the grounds set forth in his motion, he assigns:
¶3 Precisely stated, the first contention is that, in the absence of the district judge from Garvin county, the county judge of that county alone had jurisdiction to appoint this receiver. Not so. Comp. Laws 1909 (Rev. Laws 1910, sec. 4979) reads:
--in certain cases, naming them.
¶4 This authority being conferred upon the district judge, in contradistinction to the district court, means such a judge in chambers, which may be held at any place in his district. It is evident, by insisting, as he does, that "in the absence of said judge from the county" means the county where this suit is pending at the time this receiver was appointed, or Garvin county, plaintiff is in error. This for the reason that the statute not only fails so to state, but, on the other hand, means the...
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