State ex rel. Fatzer v. Miller

• Decision Date: 10 April 1954
• Docket Number: No. 39410,39410
• Citation: 268 P.2d 964,176 Kan. 175
• Parties: STATE ex rel. FATZER, Atty. Gen., v. MILLER et al.
• Court: Kansas Supreme Court

Page 964

268 P.2d 964

176 Kan. 175

STATE ex rel. FATZER, Atty. Gen., v. MILLER et al.

No. 39410.

Supreme Court of Kansas.

April 10, 1954.

Syllabus by the Court.

In an appeal from an order granting a temporary injunction and appointing a receiver, the record examined and held: (1) The demurrer to plaintiff's evidence was properly overruled; and (2) There being no motion for a new trial filed in the district court, mere trial errors are not open to appellate review.

Pat Warnick, Wichita, argued the cause, and Alan B. Phares and Henry E. Martz, Wichita, were with him on the briefs, for appellants.

Harold R. Fatzer, Atty. Gen., argued the cause, and Paul E. Wilson, Thomas M. Evans, Asst. Attys. Gen., and Ward D. Martin, Sp. Asst. Atty. Gen., were with him on the briefs, for appellee.

WERTZ, Justice.

This is an appeal from an order of the trial court granting a temporary injunction and appointing a receiver.

The petition, after stating the official capacity of the attorney general, alleged that the defendants, Mr. and Mrs. L. W. Redmond, and George Miller, were engaged in the business of lending money in small amounts to poor and necessitous residents of Kansas at usurious rates of interest of from 100 to 600 per cent per annum, under the name of Atlas Finance, with offices in Wichita, and had in their custody and control certain records, notes, contracts and other property, and that the conduct of such business constituted a common nuisance. The Atlas Finance Company was a successor to the Metro Finance Corporation, which formerly conducted business in Wichita, and had since been dissolved. The interests of Metro were purchased by defendant George Miller. There was outstanding a large number of loans made by the defendants, the loans having been made at illegal and usurious rates of interest, as aforementioned, and the loans could not be fully, adequately, and completely adjusted by remedy at law. Unless a receiver was appointed, there would be a great multiplicity of vexatious and unfounded actions to collect the usurious interest, many of which actions the borrowers would be unable on account of their poverty and lack of knowledge as to their rights under the laws of Kansas to defend. There was imminent danger of defendants disposing of their property to persons or corporations not subject to the jurisdiction of the court, and that a receiver should be appointed by the court with full power to take immediate charge of all the assets, records, notes, contracts and other property of said business. The petition prayed that a restraining order issue forthwith and, when returned, a temporary injunction issue, a receiver be appointed, and as final relief that a permanent injunction issue, restraining and enjoining the defendants, their successors, assigns, agents and employees from lending money in the state of Kansas at a rate of interest greater than permitted by the laws of this state. On the same date the petition was filed, the court issued its restraining order in compliance with plaintiff's request. Summons was issued and served upon the defendants Redmond, only. The court set the cause for hearing upon the temporary injunction and the appointment of a receiver, and subsequently on December 10, 1953, the Redmonds being present in person and by their attorneys, evidence was taken on the petition for a temporary injunction and for the appointment of a receiver. At the conclusion of plaintiff's evidence, defendants Redmond demurred on the ground that plaintiff's evidence was insufficient to sustain the relief sought. The trial court overruled defendants' demurrer and granted a temporary injunction against defendants Redmond, doing business as Atlas Finance Company, and appointed a receiver. A portion of the order reads as follows:

'It is Further Ordered, Adjudged and Decreed by the Court that a temporary injunction issue in personam against the defendants * * * other than the defendant, George Miller; and said defendants are enjoined and restrained from collecting the charges or brokerage contracts outstanding, which charges and brokerage contracts are illegal and a violation of the usury laws of the state of Kansas.

'It is Further Ordered, Adjudged and Decreed by the Court that Henry Edwards be and he is hereby appointed receiver for the defendants, Mr. and Mrs. L. W. Redmond doing business as Atlas Finance Company, and upon filing bond in the sum of $1,000.00, to be approved by the court, and filing his oath and qualifying as receiver, the said Henry Edwards, receiver, is directed to take possession of the notes, contracts, papers and instruments of any kind or nature or personal property belonging to Atlas Finance Company, and said receiver is ordered and directed...