State v. Eighth Judicial District Court

• Decision Date: 19 July 1894
• Citation: 37 P. 969,14 Mont. 577
• Parties: STATE ex rel. NEW YORK SHEEP CO. v. EIGHTH JUDICIAL DISTRICT COURT.
• Court: Montana Supreme Court

37 P. 969

14 Mont. 577

STATE ex rel. NEW YORK SHEEP CO. v. EIGHTH JUDICIAL DISTRICT COURT.

Supreme Court of Montana

July 19, 1894

Application for writ of certiorari by the state of Montana on the relation of the New York Sheep Company against the Eighth Judicial District Court. Granted.

This court is asked to review, upon writ of certiorari, the appointment of a receiver by the district court. The facts upon which the application for writ of certiorari is made are as follows: On May 31, 1894, in the eighth judicial district court for Cascade county, L. G. Phelps commenced an action against the New York Sheep Company, the relator herein, to recover the two sums of $7,303.09 and $5,000, and interest. On the same day the Severance Mercantile Company commenced an action against the same defendant to recover $5,935.24. Two writs of attachment were issued in each case, one to O'Marr, sheriff of Meagher county, and one to Deaton sheriff of Fergus county. The two sheriffs each levied upon a large band of sheep belonging to the defendant, and in their respective counties. Under each writ, in the hands of each sheriff, the Phelps levy was first, and prior to the levy of the Severance Mercantile Company. Afterwards the Severance Mercantile Company filed a complaint in the eighth judicial district court against the two sheriffs, O'Marr and Deaton, and Phelps and the New York Sheep Company. That complaint set up the facts above recited, and then stated facts tending to show that the attached property was in danger of being lost or materially in jured if it remained in the hands of these two sheriffs. The Severance Mercantile Company asked in that complaint for the appointment of a receiver of the sheep attached, as above described. That appointment was made by the district court. That action by the district court the New York Sheep Company now asks us to review on certiorari, claiming that the court had no jurisdiction or power to make the appointment.

Thompson & Maddox, for relator.

Toole & Wallace and A. J. Shores, for respondent.

DE WITT, J. (after stating the facts).

The question of the discretion of the district court is not before us, so it may be considered as a conceded fact that it was properly shown to the district court that the sheep were in danger of suffering material loss and injury if left in the hands of the sheriffs, and that the appointment of a receiver would tend to avoid this loss and injury.

We will turn our attention for a moment to one matter which we meet at the threshold of this case. It seems that the Severance Mercantile Company filed a complaint, and commenced a separate action, asking to have this receiver appointed. It is objected that there is no such thing known as an action for the appointment of a receiver, but that such appointment is ancillary to another action; that is, an action of such a nature that a receiver may be appointed therein. French Bank Case, 53 Cal. 495; Jones v. Bank, 10 Colo. 464, 17 P. 272. But perhaps it would be fair to regard what appears to be a co mplaint of the Severance Mercantile Company against the New York Sheep Company, Phelps, and the two sheriffs, as simply a petition or application of the Severance Mercantile Company, looking to an appointment of a receiver in the case which was already pending in the district court, namely, the Severance Mercantile Company against the New York Sheep Company. We are willing at least to so regard the situation of the parties. Then, the question of discretion not being under review, it remains to be decided whether, under the facts shown, the court had jurisdiction to appoint this receiver; that is to say, the question is this: If two creditors each sue one and the same debtor on simple money demands, and each creditors sues out in his case a writ of attachment, under which writs two sheriffs of different counties levy upon property of the debtor in their respective counties, then has the court jurisdiction to appoint a receiver of the property so attached and held by such sheriffs? It is also conceded, of course, that the showing was made of danger of loss and material injury. Stated more simply, the proposition perhaps may be reduced to this: In an action on a simple money demand, for a plain money judgment, in which action property has been attached, has the court power to appoint a receiver of the attached property, if it appears that there is danger that it will be materially injured? The statute-quoting the portion which is pertinent, or which was relied upon by respondent--is as follows: "A receiver may be appointed by the court in which an action is pending, or by the judge thereof: First. In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim, or between partners or others jointly owning or interested in any property or fund on the application of the plaintiff, or of any party whose right to, or interest in, the property or fund, or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured. *** Sixth. In all other cases where receivers have been heretofore appointed by the usages of courts of equity." Code Civ. Proc. § 229. Counsel for the respondent said that he relied partly upon the sixth subdivision of the section. But it is scarcely seriously urged that the appointment of the receiver was justified by that subdivision of the section, or that receivers have heretofore been appointed by the usages of courts of equity in a simple law action on debt. The California supreme court said, in reference to this subdivision, as follows: "The five subdivisions containing such specifications are followed by the sixth, which provides for the appointment where 'receivers have heretofore been appointed by the usages of courts of equity,' which expression we may conceive to be equivalent of that employed in the third subdivision of the 143d section of the former practice act,--'such cases as are in accordance with the practice of courts of equity jurisdiction.' Either of these expressions simply means that, in addition to the particular instances mentioned in the preceding subdivisions, the appointment should be made by the district court, as a court of equity, in the other suits in which the power could have been employed had there been no statute on the subject, and cannot be construed as authorizing the appointment in an action at law." Bateman v. Superior Court, 54 Cal. 285.

Counsel for respondent next urge that authority for this appointment is found in subdivision 1 of section 229. Before proceeding to read that subdivision, we remark, in passing, that there is some argument of expediency as to the making of the appointment of the receiver in this case, as well as in perhaps other actions of debt where there are numerous attachments of property. That argument should of course, be addressed to the lawmaking department of the government, and cannot be seriously entertained by a court when it stands in the face of plain language of a statute. We have examined our statute with some assiduity in search of the power of the district court to make this appointment, for we believe that the discreet exercise of such a power would sometimes be beneficial; but we cannot find the power given by the law. But the attachment law is not unmindful of the care and disposition of the attached property. A bond must be given by the party attaching. Code Civ. Proc. § 182. The sheriff is under the duty to "safely keep" the property. Id. § 184. The sheriff is an officer of the court, and subject to the court's proper orders. Again, if it appear to the court that the interests of the parties will be subserved by a sale of the attached property the court may, upon determining such fact upon a hearing of both parties, order the property sold as property is sold under execution. Id. § 541. We will then proceed for a moment to analyze the statute. Turning again to subdivision 1, § 229, it is observed that the first sort of case in which a receiver may be appointed is in an action by a vendor to vacate a fraudulent purchase of property. This, of course may be passed without comment. Next, we find that a receiver may be appointed is in an action by a creditor to subject any property or fund to his claim. We should be inclined to say that this might be passed without comment, were it not that counsel for the respondent has relied upon it. We therefore examine it a moment. The action here was a simple one of debt. Surely it cannot be contended that a simple action of debt, asking only a straight money judgment, is an action by a creditor to subject property or a fund to his claim. The action is not for such a purpose. It does not seek such relief. There is nothing about such an action which looks to an obtaining of the relief of subjecting a fund or property to the plaintiff's claim. Nor does the fact that a writ of attachment was issued change the nature of the action from a money demand to one for the relief of subjecting a fund to plaintiff's claim. Again, it has been suggested that the following portion of subdivision 1, § 229, is sufficient to grant the power to the district court. The portion reads as follows: "A receiver may be appointed *** in an action *** between partners, or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of any party whose right to, or interest in, the property or fund, or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured." But no partners are concerned here, and no other persons jointly owning any property or funds. Omitting these...