Security Savings & Trust Co. v. Piper

• Decision Date: 17 April 1895
• Citation: 40 P. 144,4 Idaho 463
• Parties: SECURITY SAVINGS AND TRUST CO. v. PIPER, JUDGE
• Court: Idaho Supreme Court

40 P. 144

4 Idaho 463

SECURITY SAVINGS AND TRUST CO. v. PIPER, JUDGE

Supreme Court of Idaho

April 17, 1895

PRACTICE-CORPORATION-DISSOLUTION-RECEIVER.-Under sections 5185, 5186, and 5187 of the Revised Statutes of Idaho, the trustees and stockholders of a corporation may make application to the district court for its dissolution and upon such application being made, the court is authorized by section 4329 of the Revised Statutes to appoint a receiver when necessary to take charge of the property of such corporation.

(Syllabus by the court.)

Original proceeding by writ of review.

Judgment affirmed, with costs of respondent.

W. H Winfree and Forney, Smith & Moore, for Petitioner.

This cause coming up on certiorari the inquiry is, of course, to be confined to a consideration of the "mere power" of the district court to appoint a receiver in a case of this nature. In brief, did the inferior court exceed its jurisdiction? Independent of the fifth subdivision of section 4329 of the Code of Civil Procedure of the Revised Statutes of Idaho there is no jurisdiction vested in courts of equity to appoint a receiver for the dissolution of a corporation and the administration of its affairs, but that such powers when they exist, are statutory. This question was brought under consideration in the case of Neall v. Hill, 16 Cal. 145, 76 Am. Dec. 508, and note, and also in French Bank Case, 53 Cal. 550. The authority conferred upon the court to make the appointment necessarily presupposes that an action is pending before it, instituted by some one authorized by law to commence it. (Gold Hunter Min. etc. Co. v. Holleman, 3 Idaho 99, 27 P. 413; Kimball v. Goodburn, 32 Mich. 10; Hugh v. McRae, Chase, 466, F. Cas. No. 6840; Jones v. Bank of Leadville. 10 Colo. 464, 17 P. 276; Smith v. Superior Court, 97 Cal. 348, 32 P. 322.)

Sweet, Steele & George W. Goode, for Defendant.

An order appointing a receiver is interlocutory and writ of review can only issue for the purpose of reviewing final determinations. (People v. County Judge, 40 Cal. 479; People v. Lindsey, 1 Idaho 394; Everidge v. Berrys, 93 Ga. 760, 20 S.E. 644; State v. Edwards, 104 Mo. 125, 16 S.W. 117; Schwarz v. County Court, 14 Colo. 44, 23 P. 84.) To entitle a petitioner to a writ of review he must be a party to the suit or matter in controversy. (Gold Hunter Min. etc. Co. v. Holleman, 3 Idaho 99, 27 P. 413.) Writ of review is not a writ of right, and will issue only when it appears that justice requires it. (Duggen v. McGruder, Walk. 112, 12 Am. Dec. 527; People v. Supervisors of Allegany, 15 Wend. 198; Keys v. Marin County, 42 Cal. 252; People v. Mayor of New York, 2 Hill, 12.) Courts of equity have power independent of statute to appoint receivers of corporations, either on request of the corporation itself or its stockholders. (Olmstead v. Distilling etc. Feeding Co., 73 F. 44, 9 Nat. Corp. Rep. 9, p. 503; Towle v. American Bldg. etc. Soc., 60 F. 131; Doe v. Northwestern Coal etc. Co., 64 F. 928; Wooding v. J. Wooding & Co., 10 Wash. 531, 39 P. 137; 1 Hill's Washington Code, sec. 1519.)

In the matter of the dissolution of the Farmers' Bank of Moscow on the second day of January, 1895, four of the six trustees and the cashier of the said bank file their petition in the district court for Latah county, and allege that said bank is a corporation; that at a meeting of the stockholders of said corporation held on the second day of January, 1895, over two-thirds of the members and stockholders of said corporation voting therefor, a resolution was passed that the said corporation be dissolved, and its affairs be placed in the hands of a receiver; that an application be made to the district court for said dissolution, and that E. R. Headley be appointed as receiver, he being one of the stockholders thereof. On the same day said E. R. Headley filed his petition in said court, setting forth substantially the same facts, and, in addition thereto, stating that the plaintiff herein, on the thirty-first day of December, 1894, brought suit against said bank for the sum of $ 2,360, issued an attachment therein, and levied the same upon the property real and personal, of said bank. On the said second day of January, 1895, over two-thirds of the members and stockholders of said bank file their consent and request for the appointment of said Headley as receiver. It also appears as a fact that said corporation was then insolvent. It also appears from recitals in the judgment and decree of the district court herein that the plaintiff in this cause appeared in said suit by its attorney, and then and there in open court consented and requested that said Headley be appointed receiver as aforesaid; that said plaintiff was one of the largest creditors of said Farmers' Bank of Moscow. Upon consideration of said petition and facts appearing in said cause, the said E. R. Headley was appointed a receiver therein, with instructions to take possession of all the property and assets of said Farmers' Bank of Moscow, and take charge of all the business of said bank, and conduct it in such manner as will be for the best interest of the stockholders and creditors of said bank, subject at all times to the orders of the court. It further appears that by virtue of said order of said district court the said receiver so appointed has taken possession of the property and assets of said bank, and now holds the same, subject to the order of said district court. To the...