State ex rel. Rex Investment Co. v. District Court

• Decision Date: 27 October 1927
• Docket Number: 1485
• Parties: STATE, EX REL., REX INVESTMENT CO., ET AL. v. DISTRICT COURT [*]
• Court: Wyoming Supreme Court

260 P. 185

37 Wyo. 206

STATE, EX REL., REX INVESTMENT CO., ET AL. v. DISTRICT COURT ^[*]

No. 1485

Supreme Court of Wyoming

October 27, 1927

Original proceeding in prohibition by the State, on the relation of the Rex Investment Company and others, against the District Court of the Eighth Judicial District within and for the County of Natrona and Bryant S. Cromer, Judge thereof. Heard on motion to quash alternative writ.

Petition for writ of prohibition dismissed.

E. Paul Bacheller, for plaintiffs, submitted the following authorities:

Spelling Vol. 1, Secs. 40 and 41, and note; 27 Cyc. 1073, 41 C. J 466, Sec. 369; Jones Mortgages, Sec. 1577-a; Snow v. Haberer, 170 Ill.App. 265; 41 C. J. 973, Sec. 1421; McCone v. Courser, 15 A. 129; Kelso v. Russell, 74 P. 561; Strode v. Miller, 59 P. 893; Hull v. King, 37 N.W. 792; Child v. Morgan, 52 N.W. 1127; Bitzer v. Campbell, 49 N.W. 691; Mason v. Goodnow, 42 N.W. 482; Taylor v. Evans, 183 N.W. 89; Sec. 4633 W. C. S. 1920; Spelling, Vol. 2, Sec. 1730; 24 P. 121; 41 C. J. 1465, p. 1010.

Hagens & Murane, for defendants.

The rule requiring separate sales of disconnected parcels of land is not arbitrary, but is followed when better prices can be obtained. Genda Springs., etc. v. Lombard, 47 P. 432 (Kans.) . The code is silent as to mode of sale, and the Court has jurisdiction to confirm the sale. Hopkins v. Wiard, (Calif.) 13 P. 687; Heyburn v. Babcock, 30 Cal. 367; Macombe v. Prentis, (Mich.) 23 N.W. 788; Kane v. Jonasen, (Neb.) 76 N.W. 441; McLarty v. Urquhart, (N. C.) 69 S.E. 245; Miller v. Trudgeon, (Okla.) 86 P. 523; Land Co. v. Audas, (Ky.) 110 S.W. 325; Shepers v. Pepper, 33 L.Ed. 706. Prohibition will not lie if inferior court has jurisdiction and there be a remedy by appeal. 32 Cyc. 612-617; Keefe v. Court, 16 Wyo. 381; State v. Court, 31 Wyo. 413; State v. Tidball, (Wyo.) 252 P. 499; Altman v. Court, (Wyo.) 254 P. 691. The writ is granted to prevent action and not to undue what has already been done. State v. Ausherman, 11 Wyo. 410; State v. Court, 5 Wyo. 227; State v. Mills, (Mo.) 133 S.W. 22; State v. Taylor, (Mo.) 166 S.W. 1071; Corley v. Court, (Okla.) 134 P. 835. The writ will not lie to prohibit ministerial acts.

OPINION

Per Curiam.

The petition for the writ of prohibition in this case questions the jurisdictional validity of the judgment and proceedings in an action brought for the foreclosure of certain mortgages. In August, 1920, one of the relators, Rex Investment Company, a corporation, executed and delivered to one W. R. Sample certain promissory notes aggregating $ 125,000 and as security therefor a mortgage covering Lot 2 in Block 7 in the City of Casper, this state. On the same day, said relator also executed and delivered to said Sample a further series of promissory notes aggregating the same sum, $ 125,000, and at the same time, as security therefor, a mortgage covering Lot 16 of Block 18 in said city. On the same day the said relator executed and delivered a promissory note for $ 25,000, which was transferred to the other relators in this case, Nicolaysen Lumber Company and M. J. Gothberg, which note was secured by a mortgage upon both of the properties above described, and was given as a second and junior lien thereon. Said debtor company, being in default in the payment of said notes to Sample, the latter, on September 11, 1926, commenced an action in the district court in Natrona County, wherein Casper is situated, against the said Investment Company, Nicolaysen Lumber Company and Gothberg and the Casper Wyoming Theatres Company, seeking therein a recovery upon the said promissory notes and the foreclosure of Sample's said mortgages and also to bar the second mortgagees from any interest in the premises. The latter answered, setting up and asking a foreclosure of their mortgage.

That action came on for hearing in the district court on March 3, 1927, and at the conclusion thereof said court (defendant herein) entered judgment whereby the amount due Sample upon his notes and mortgages and the amount due the Nicolaysen Lumber Company and Gothberg was determined and adjudged and the mortgaged premises were ordered to be sold to satisfy the amounts so found to be due. By said judgment and decree Edward E. Murane and H. B. Durham, of Casper, were appointed as receivers and master commissioners to enter upon said premises, operate, manage and control the same, collect the rents, issues, income and profits therefrom, and to perform the other duties as in said judgment and decree set forth, among which was, "to offer said mortgaged premises for sale." The petition herein alleges that the mortgaged premises specifically described as Lot 2 in Block 7 is commonly known as the America Theatre and that the other described lot is commonly known as the Rex Theatre; and they were so referred to in the argument here. The said judgment provided "that the property comprising the America Theatre and the property comprising the Rex Theatre shall be first offered separately and then offered together as one entire property, and shall be sold jointly in case a greater price can be received therefor jointly than the price offered for said property separately."

The court found also by its judgment that the respective properties consisted not only of the realty but of fixtures and personal property, all of which were respectively considered by the court as the "America Theatre and Rex Theatre." And the relators here, the Rex Investment Company, the Nicolaysen Lumber Company and M. J. Gothberg, agreed in open court that all of said properties in said theatres respectively should be included as a part of the security of the mortgages thereon. The court found by its said judgment that there was due, upon the mortgage to Sample covering the America Theatre, $ 73,303.32, and upon the mortgage to him covering the Rex Theatre the sum of $ 67,480. That there was due upon the mortgage covering both the America and Rex Theatres held by the relators Nicolaysen Lumber Company and Gothberg, the sum of $ 31,127.78. That there were taxes due the county from the mortgagor amounting to the sum of $ 4732.47, and that there is due from the said mortgagor to other creditors the sum of $ 30,000 and upwards, and that it was at the date of the commencement of the suit wholly insolvent.

The court found that the said mortgaged property was probably insufficient to discharge the debts secured; that the mortgagor had agreed that a receiver should be appointed that the mortgagor had threatened to remove a part of the properties described out of the buildings and that an injunction had theretofore been granted and should be continued. It was then ordered and adjudged by the said judgment: That the plaintiff and relators Nicolaysen Lumber Company and Gothberg respectively recover the amounts due them with attorneys fees fixed as to each mortgage and interest at 7% from the date of the judgment. That said Durham and Murane be "and they are hereby appointed" joint receivers of the said property and assets of the defendant mortgagor, comprising the America Theatre and the Rex Theatre, and that on March 9, 1927, upon filing their bond or undertaking herein in such sum as the court on that date shall fix, with sufficient sureties to be approved by the court, such receivers shall immediately enter into and upon the said properties and thereupon use and operate, manage and control the same, collect the rents, issues, income and profits thereof, keep said properties insured against loss by fire, and out of the income from said theatres pay necessary expenses of the operation and conduct of running said theatres, and out of the first proceeds available to pay any insurance premiums which may be due on account of fire insurance and on delinquent taxes. That the said respective mortgages be foreclosed and the property covered thereby be sold at public auction in manner and form as upon the sale of real estate upon execution, and in the manner prescribed by law and according to the practice of the court. That said sale may be made by the Receivers as Receivers and Master Commissioners, and not necessarily by the sheriff. That the America Theatre and the Rex Theatre shall be first offered separately, and then offered together as one entire property; and shall be sold jointly in case a greater price can be received therefor jointly than the price offered for said properties separately. The judgment then proceeded to direct the application of the proceeds, which...