State ex rel. Bugbee v. Holmes

• Decision Date: 03 January 1900
• Docket Number: 11,016
• Citation: 81 N.W. 512,59 Neb. 503
• Parties: STATE OF NEBRASKA, EX REL. CHARLES L. BUGBEE, v. EDWARD P. HOLMES
• Court: Nebraska Supreme Court

81 N.W. 512

59 Neb. 503

STATE OF NEBRASKA, EX REL. CHARLES L. BUGBEE, v. EDWARD P. HOLMES

No. 11,016

Supreme Court of Nebraska

January 3, 1900

ORIGINAL application for mandamus to require respondent, as judge of the district court, to fix the amount of a bond to supersede an order confirming a sale of realty. Writ denied.

WRIT DENIED.

Frank Irvine, for relator:

So far as the right to a supersedeas is concerned, there is no distinction between an order directing the sale of real estate, and an order confirming such sale. See Kountze v Erck, 45 Neb. 288; State v. Fawcett, 58 Neb. 371.

The facts and pleadings establish relator's right to intervene. See Wilcox v. Bickel, 11 Neb. 154; Fitzgerald v. Fitzgerald & Mallory Construction Co. 41 Neb. 374; Bronson v. La Crosse M. R. Co. 2 Wall. [U S.], 283; Morrill v. Little Falls Mfg. Co. 48 N. W. [Minn.], 1124; Waymire v. San Francisco & S. M. R Co. 44 Pac. [Cal.], 1086; Park v. Petroleum Co. 25 W.Va. 108.

No prior leave of court is essential to the right of intervention. The statute gives the absolute right. The merits of the intervention are to be determined later. See Code, secs. 46, 47, 50a, 50b, 50c; McConniff v. Van Dusen, 57 Neb. 49; Clark v. Way, 52 Neb. 204; Cobbey v. Dorland, 50 Neb. 373; Moline v. Hamilton, 56 Neb. 132; Deere v. Eagle Mfg. Co. 49 Neb. 385; Welborn v. Eskey, 25 Neb. 195.

Tibbets Bros. Morey & Anderson, contra.

References: Kansas & C. P. R. Co. v. Fitzgerald, 33 Neb. 137; Harrison v. King, 9 O. St. 388; Farmers' Loan & Trust Co. v. Kansas City, W. & N. R. Co. 53 F. 186.

OPINION

HARRISON, C. J.

The object of this action is to procure the issuance from this court of a writ of mandamus by which one of the judges of the district court of Lancaster county will be directed to fix the amount of a bond to supersede an order made by him by which there was confirmed the sale of some real estate. It appears that the Lincoln Savings Bank & Safe Deposit Company was a corporation of this state, and engaged in the banking business; that in January, 1896, in a suit by one who claimed to be its creditor, pursuant to the relief sought, a receiver was appointed to wind up the affairs of the bank, and the receiver appointed entered upon the duties, and has since been performing them; that on July 17, 1899, an order was made that the receiver sell such assets of the bank as then remained in his hands for disposition, and pursuant to which, during the month of September, 1899, the receiver made a sale of some of the said assets, inclusive of real estate, and reported his doings at such sale to the court. That the relator herein filed on September 19, 1899, a petition of intervention in the original action in which the receiver was appointed; also, objections to the confirmation of said sale; that from an order of confirmation the relator sought to perfect an appeal, and asked that the trial court fix the amount of a supersedeas bond, which request was refused. It was stated in the petition of intervention:

"Now comes Charles L. Bugbee and shows to the court that this is an action wherein it is sought to wind up the affairs of the defendant Lincoln Savings Bank & Safe Deposit Company, a corporation organized under the laws of the state of Nebraska; that John E. Hill has been appointed receiver in said action and is now and for a long time past has been acting as such.

"Your petitioner further says that he is the holder of ten shares of stock in said Lincoln Savings Bank & Safe Deposit Company and was such holder at the time of the commencement of this suit. That said receiver has been proceeding from time to time to sell and dispose of the assets of said corporation generally at private sale and always without notice to said corporation and without any adequate advertisement of said sales, and that by virtue of said actions a large proportion of said corporate assets has been sold, and disposed of at much less than the real value of such assets and that the interests of said corporation its creditors and stockholders have been very greatly injured and impaired by such irregular and unlawful sales. That there still remains in the possession of and under the control of said receiver the remainder of said assets consisting of real estate situated in the counties of Lancaster, Greeley, Scott's Bluff, Gage and Thayer in Nebraska, and in the county of Laramie, Wyoming, and also certain personal property consisting of notes, warrants and judgments, a more detailed description of said assets is hereto attached and marked Exhibit 'A.' There may be and probably are in the hands of the receiver other assets but your petitioner has no means of informing himself thereof and cannot definitely allege that there are other assets or describe the same. Your petitioner further avers that said receiver proposes this day to sell at his office in the city of Lincoln said assets described in Exhibit 'A'; that he proposes to do so under a pretended order purporting to be made by the Honorable Edward P. Holmes, judge of this court, July 17, 1899, and on this behalf your petitioner avers that said pretended order is wholly void, as he is prepared to show if permitted so to do; and that said receiver has proceeded, is proceeding and intends to proceed in disregard of the terms of said order and that the result of said proceeding if confirmed by this court will be to sacrifice the remaining assets of said corporation by disposing thereof at much less than their real value and at much less than he would receive from a fair and legal sale thereof and that if said pending and proposed action be confirmed the rights and interests of said corporation its stockholders and creditors will be further and irremediably impaired.

"And further your petitioner avers that at the time of the commencement of this suit and for a long time prior thereto one R. D. Miller was president of said corporation and of its board of directors; that soon after the commencement of this suit said Miller removed from this state and has ever since been and still is absent therefrom and his whereabouts is unknown. That since the year 1895 there has been no election of a board of directors of said corporation and that the term of office of each director then elected long ago expired. That when this suit begun said directors abdicated their functions and they have never since met or acted in any way as a board of directors; that said board of directors has never appeared to defend this action nor has said...