State v. District Court of Second Judicial District

• Decision Date: 16 October 1893
• Citation: 34 P. 609,13 Mont. 416
• Parties: STATE ex rel. GREENLAND v. SECOND JUDICIAL DISTRICT COURT et al.
• Court: Montana Supreme Court

34 P. 609

13 Mont. 416

STATE ex rel. GREENLAND v. SECOND JUDICIAL DISTRICT COURT et al.

Supreme Court of Montana

October 16, 1893

Certiorari by the state of Montana, at the relation of Louise B Greenland, against the second judicial district of the state of Montana and the judges thereof, to review the action of the judges in making an order appointing a receiver for property in relator's possession, pending an action against her for its recovery. Order annulled.

Oliver M. Hall, for relator.

Chas R. Leonard, for respondent.

HARWOOD J.

The matter for review herein is the appointment of a receiver by the court below, in an action in the nature of ejectment, to take and hold possession of the real estate in controversy collect the rents and profits thereof, and dispose of the same, pursuant to the orders of court. That appointment relator claims, is in excess of the court's jurisdiction in said action, and she therefore brings the proceeding up for review by certiorari to obtain relief therefrom. Bateman v. Superior Court, 54 Cal. 285.

It appears that in said action one Carl Earnest Leischke, plaintiff, seeks to recover from relator, Louise B. Greenland, possession of a certain parcel of real estate situate in the city of Butte, this state. Immediately after filling complaint and service of summons, such proceedings were had as resulted in the appointment of a receiver to take and hold possession of the property in dispute, and manage the same, collect the rents thereof, pay expenses of management, and apply the remaining proceeds to the payment of incumbrances on said property, subject to the further orders of the court. The complaint in said ejectment suit contains allegations in substance as follows: That on June 19, 1893, said plaintiff, Carl Earnest Leischke, was, and ever since has been, the owner and entitled to the possession of said premises, particularly describing the same; that on said date defendant, Louise B. Greenland, conveyed to plaintiff said premises by warranty deed, a copy of which deed is attached to the complaint as part thereof; that ever since said conveyance defendant has unlawfully and wrongfully withheld possession of said premises from plaintiff, to his damage in the sum of $1,000; that the value of the rents and profits of said premises since June 19, 1893, while plaintiff has thus wrongfully excluded defendant therefrom, is $400; that the improvement situated upon said premises is a two-story lodging house, comprising twenty rooms, all of which rooms, except one occupied by defendant Greenland, are leased by her to tenants, and that the sum of about $250 per month is realized therefrom, and that defendant appropriates such rents to her own use; that defendant is insolvent, and will be unable to refund any of the rents so collected by her while in the wrongful possession of said premises. And plaintiff further avers that said property is mortgaged to secure payment of the sum of $7,000, bearing interest, by a mortgage executed and delivered by defendant while she owned said premises prior to such conveyance to plaintiff; that the interest on said mortgage becomes due and payable monthly, and said mortgage provides that, in case of default in payment of such interest as it becomes due, thereby the whole principal of said mortgage debt shall become due and payable; that defendant has neglected and refused to pay any interest on said mortgage since said conveyance of the property to defendant, and that said interest has been paid by plaintiff; that plaintiff is unable to continue the payment of such interest unless he receives the rents and profits of said property; "that defendant, by collecting and appropriating to her own use said rents, is endangering the title to said property, and suffering the same to go to waste." Upon these allegations plaintiff demands judgment against defendant (1) for the recovery of the possession of said premises, and $1,000 damages for wrongfully withholding possession thereof; and (2) for the sum of $400, value of rents and profits thereof, and costs of suit; and, further, that a receiver be appointed pendente lite, with full power and authority to enter upon and take possession of said premises, to take care of and rent the same, with power to demand and enforce the payment of rents pending this suit in such manner as may be deemed most advantageous to the parties interested therein, subject to the further orders of court.

In compliance with an order of court issued and served upon defendant, Greenland, in said action, calling upon her to show cause, if any existed, why a receiver should not be appointed to take charge of said property as demanded in the complaint, she appeared and filed an affidavit of merits setting forth affirmations and denials in substance as follows: She denies that plaintiff is now, or was at any time, owner of said property. Denies that said property was conveyed to plaintiff on June 19, 1893, or at any time, by defendant, by warranty deed or otherwise, but alleges the facts to be that on or about said date plaintiff negotiated with defendant for the purchase of said property; that according to the terms of an oral agreement then made between said parties, plaintiff agreed to assume the mortgage of $7,000 upon said premises, and to assume and pay certain insurance, and the interest then due on said mortgage, and certain other debts and obligations of defendant, not exceeding $2,000, and also to execute and deliver to defendant two promissory notes, each for the payment of $1,000 to defendant at the end of one and two years from said transaction, making a consideration of $11,000 to be paid by plaintiff for said premises; "that, relying on said oral agreement with plaintiff, the defendant executed the deed mentioned in plaintiff's complaint, but alleges that said deed was never delivered by defendant to plaintiff, and that plaintiff secured possession of said deed without defendant's consent, and that plaintiff refused to deliver to defendant said...