State v. Second Judicial Dist. Court in and for Washoe County

• Decision Date: 27 August 1923
• Docket Number: 2604.
• Citation: 217 P. 962,47 Nev. 86
• Parties: STATE EX REL. IRVING NAT. BANK v. SECOND JUDICIAL DISTRICT COURT IN AND FOR WASHOE COUNTY ET AL.
• Court: Nevada Supreme Court

217 P. 962

47 Nev. 86

STATE EX REL. IRVING NAT. BANK v. SECOND JUDICIAL DISTRICT COURT IN AND FOR WASHOE COUNTY ET AL.

No. 2604.

Supreme Court of Nevada

August 27, 1923

Prohibition by the State, on the relation of the Irving National Bank against the Second Judicial District Court in and for the County of Washoe and George A. Bartlett, Judge thereof. Alternative writ previously issued dismissed.

See also, 215 P. 641.

Painter Stoddard & Withers, of Reno, for petitioner.

Cooke French & Stoddard, of Reno, for respondents.

DUCKER C.J.

The petition to this court of Irving National Bank, a corporation, presents the following facts:

The petitioner, Irving National Bank, obtained a judgment against the Como Consolidated Mines Company in the Second judicial district court in and for the county of Washoe, amounting, exclusive of interest on the promissory note sued on, costs, and attorney's fees, to the sum of $11,505.93, which was on the 8th day of August, 1922, duly docketed in the office of the county clerk of said county, and a transcript of said judgment docketed, filed in the office of the county recorder of Lyon county. Thereafter, on the 17th day of January, 1923, a writ of execution issuing out of said court was placed in the hands of the sheriff of said Lyon county, who, two days later, in obedience thereto, seized and levied upon a group of patented and unpatented mining claims situated in said Lyon county and owned by said Como Consolidated Mines Company, and also upon a number of buildings, mining machinery, equipment, bunkhouses, and other personal property located upon said mining property, and owned and previously used by the said mining company in operating the mining claims. The sheriff placed a keeper in charge of said property and was proceeding to sell it under execution to satisfy said judgment. Thereafter, on or about the 21st day of February, 1923, the said mining company, upon petition of Gurney Gordon, on behalf of himself and all other stockholders similarly situated, admitted its insolvency and consented to the appointment of a receiver by the said district court. The Irving National Bank, the judgment creditor, was not made a party to, nor did it have any notice of, such proceeding. On or about the 25th day of February, 1923, pursuant to the order of court appointing him, the receiver served the order of court, or caused the same to be served, upon the said sheriff, and took said property from his possession, which possession the receiver has ever since held. Thereafter, on the 7th day of March, 1923, in the receivership proceedings, upon application of the receiver, the court entered an order, which 10 days later was amended, authorizing said receiver to issue receiver's certificates for the sum of $15,000, with interest thereon at the rate of 8 per cent. per annum, and when so issued and delivered to constitute a first lien upon the property and assets of said judgment debtor, said certificates to be countersigned by Hon. George A. Bartlett, presiding judge of department 2 of said court, after application and showing therefor being made on behalf of the receiver. The said receiver's certificates were authorized for the purpose of defraying the expenses of administration and to preserve the property.

It is alleged in the petition for the writ that the Irving National Bank is not a party to the receivership proceedings, and that no lawful process, writ, order, or notice of any kind whatsoever regarding any of the proceedings so taken and had by said district court, or any judge, or said receiver therein, has ever been issued or served upon it, nor has it voluntarily or otherwise become a party to or intervened or participated in said receivership proceedings, but is a stranger thereto.

On May 4, 1923, and before the receiver had filed his first report, which was then due, and before the district court could consider or act upon the same, the Irving National Bank herein sought and obtained from this court the alternative writ of prohibition and the temporary restraining order and order to show cause herein now pending. It is insisted by the petitioner that the district court was without jurisdiction to make the order interfering with the sheriff's possession and sale of the property under execution, or the orders making the receiver's certificates a first lien upon the property of the judgment debtor, and that prohibition is a proper remedy to obtain redress.

If, as contended by the respondents, the petitioner has a plain, speedy, and adequate remedy in the ordinary course of law, by appearing in said receivership suit and applying to the respondent court for whatever relief it deems itself entitled to respecting the alleged prior lien, or for exempting the property on which it claims an execution lien from the operation of the said order appointing the receiver, or the said orders authorizing the issuance of receiver's certificates, the writ must be dismissed, and petitioner left to pursue such remedy. It is a well-settled rule, incorporated within the provisions of our statute concerning the remedy of prohibition, and affirmed by decisions of this court, that the writ will not issue if there is a plain, speedy, and adequate remedy at law. As stated by this court in Walcott v. Wells, 21 Nev. 47, 24 P. 367, 9 L. R. A. 59, 37 Am. St. Rep. 478, and quoted with approval in subsequent decisions:

"Like all other prerogative writs, it is to be used with caution and forbearance, for the furtherance of justice, and securing order and regularity in judicial proceedings in cases where none of the ordinary

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