Skeen v. District Court of Fifth Judicial Dist. in and for Bannock County

• Decision Date: 10 July 1916
• Citation: 29 Idaho 331,158 P. 1072
• Parties: MARGARET SKEEN and LAFAYETTE SKEEN, Plaintiffs, v. THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT FOR BANNOCK COUNTY, and J. J. GUHEEN, Judge of Said Court, Defendants
• Court: Idaho Supreme Court

158 P. 1072

29 Idaho 331

MARGARET SKEEN and LAFAYETTE SKEEN, Plaintiffs, v. THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT FOR BANNOCK COUNTY, and J. J. GUHEEN, Judge of Said Court, Defendants

Supreme Court of Idaho

July 10, 1916

PROHIBITION-FORECLOSURE OF CHATTEL MORTGAGE-APPOINTMENT OF RECEIVER-RECEIVER'S SALE.

1. Sec 4994, Rev. Codes, which provides: "The writ of prohibition.... arrests the proceedings of any tribunal corporation, board or person when such proceedings are without or in excess of the jurisdiction of such tribunal corporation, board or person," limits our inquiry in this case to a determination of whether or not the district court is acting within the jurisdiction conferred upon it by law.

2. Held, that the district court had jurisdiction of the parties and of the subject matter in a suit to foreclose a chattel mortgage, and did not exceed its jurisdiction in appointing a receiver and in ordering a sale of the mortgaged property.

[As to when it is proper for court to appoint receiver, see note in 72 Am.St. 29]

Original application for a writ of prohibition. Demurrer to petition sustained and alternative writ quashed.

Demurrer to the petition sustained and motion to quash the alternative writ of prohibition granted. Costs awarded to defendants.

J. B. Hall and Maurice M. Myers, for Plaintiffs.

The court had no jurisdiction to order a receivership for the reason that the complaint was not an affidavit of any evidential value, the verification thereof, even though in the present statutory form, being insufficient to make the same evidence of any facts whatever.

"A bill verified upon information and belief is held to afford no evidence upon which alone to predicate an order appointing a receiver." (34 Cyc. 134.)

"Allegations of mere belief in the facts are not sufficient. The petition or application must be verified in positive terms." (Anderson on Receivers, sec. 113; Siegmund v. Ascher, 37 Ill.App. 122; High on Receivers, 4th ed., sec. 89; Grandin v. La Bar, 2 N.D. 206, 50 N.W. 151; Burgess v. Martin, 111 Ala. 656, 20 So. 506; Pollard v. Southern Fertilizer Co., 122 Ala. 409, 25 So. 169; Smith-Dimmick Lumber Co. v. Teague, 119 Ala. 385, 24 So. 4; Schilcer v. Brock, 124 Ala. 626, 27 So. 473; Benepe-Owenhouse Co. v. Scheidegger, 32 Mont. 424, 80 P. 1024.)

The court had no jurisdiction to order a receivership without notice, for the reason that there was no showing before the court of a necessity for such immediate appointment. (34 Cyc. 117; Hobson v. Pacific States Mercantile Co., 5 Cal.App. 94, 89 P. 866; Fischer v. Superior Court, 110 Cal. 129, 42 P. 561; Larsen v. Winder, 14 Wash. 109, 53 Am. St. 864, 44 P. 123; Buckley v. Baldwin, 69 Miss. 804, 13 So. 851.)

I. E. McDougall and McDougall & Jones, for Defendants.

It is universally the usages of courts of equity in the exercise of judicial discretion to appoint a receiver to take charge of the personal property on foreclosure of mortgages under circumstances such as alleged in this complaint. (27 Cyc. 1622; Keane v. Kibble, 28 Idaho 274, 154 P. 972.)

A receiver will be appointed to prevent an unlawful disposal of the property or its removal out of the jurisdiction. (34 Cyc. 68; Jones v. Quayle, 3 Idaho 640, 32 P. 1134.)

This court had before it the identical question in the case of Utah Assn. of Credit Men v. Budge, 16 Idaho 751, 754, 102 P. 390, 691.

The petition does not show the facts necessary to entitle the petitioner to a writ, and, therefore, the writ should be denied. (In re Francis, 7 Idaho 98, 60 P. 561.) A writ of prohibition cannot be issued as a writ of error to determine a question of fact which was for the trial court to determine, but only determine whether the superior court is proceeding in excess of its jurisdiction. (Conlan v. Superior Court, 12 Cal.App. 420, 107 P. 577; Dakan v. Superior Court, 2 Cal.App. 52, 82 P. 1129; Estate v. Superior Court, 45 Wash. 248, 88 P. 207; State ex rel. Lyon v. Police Court, 53 Wash. 361, 101 P. 1082.) The object of the writ of prohibition is to prevent the exercise of jurisdiction by an inferior court with which it has not been vested by law, not to correct errors in practice or proceedings. (State v. Ausherman, 11 Wyo. 410, 72 P. 200, 73 P. 548; People v. District Court, 29 Colo. 83, 66 P. 1068; In re Miller, 4 Idaho 711, 43 P. 870; Rust v. Stewart, 7 Idaho 558, 64 P. 222.)

MORGAN, J. Sullivan, C. J., concurs. Budge, J., did not sit at the hearing of this case and took no part in the decision.

OPINION

MORGAN, J.

On March 10, 1916, Evans State Bank filed its complaint in the district court of the fifth judicial district, in and for Power county for the foreclosure of two mortgages, one conveying real estate and the other personal property, executed by the above-named plaintiffs in order to secure the payment to the bank, by themselves, of a promissory note for $ 5,000, on which, it appears, there was due and unpaid the sum of $ 4,564, together with interest at the rate of twelve per cent per annum from October 25, 1915. The personal property described in the chattel mortgage consists of livestock, farm machinery and agricultural implements, owned and held in Power county, and it is alleged in the complaint in the foreclosure case that the defendants therein, Margaret Skeen and Lafayette Skeen, are wholly insolvent and unable to pay any deficiency that may remain after the sale of the mortgaged property; that they have sold a portion of the mortgaged chattels without the knowledge or consent of the bank and have appropriated the proceeds of the sale to themselves and have not accounted therefor; that the personal property described in the mortgage, if left in the hands of the defendants, Skeen and Skeen, is in danger of being lost, removed and materially injured, and that there is a prior mortgage upon the real estate in favor of the Union Central Life Insurance Company to secure the payment of $ 7,000, which is wholly and completely unsatisfied and is prior to the lien of the mortgage of Evans State Bank, and that the property mortgaged to the bank will be insufficient to discharge the debt due to it if it is not all sold and applied thereto. The plaintiff in the foreclosure suit asked that a receiver be appointed and on March 13, 1916, the defendant herein, Honorable J. J. Guheen, Judge of the district court, without notice to the defendants in the foreclosure suit, made an order appointing a receiver to take charge of the personal property described in the mortgage, and therein provided that such order and appointment should become effective upon the receiver filing with the court his oath of office and a bond in the sum of $ 5,000, conditioned upon the faithful performance of his duties. It appears that thereafter the receiver qualified by giving the bond and filing his oath of office, and that he took into his possession such of the personal property described in the chattel mortgage as could be found; that thereafter a motion was made to vacate and set aside the receivership, which was heard by the district judge upon oral and documentary evidence and was denied, and that an order was made and entered in the district court that the receiver proceed to sell the mortgaged property in his possession.

This is an original action commenced in this court to procure the issuance of a writ of prohibition directed to the defendants the district court and Honorable J. J. Guheen, Judge thereof, commanding them and each of them to desist from taking, or causing or permitting to be taken, any further proceedings under the order...