Wheelwright v. National Copper Bank
| Decision Date | 08 May 1913 |
| Docket Number | 2469 |
| Court | Utah Supreme Court |
| Parties | WHEELWRIGHT v. NATIONAL COPPER BANK (BEN LOMOND ORCHARD CO., Intervener) |
APPEAL from District Court, Third District; Hon. Geo. G. Armstrong Judge.
Action by David R. Wheelwright, as Receiver of the McGriff Orchard and Canning Co. against the National Copper Bank of Salt Lake City, Utah, in which the Bend Lomond Orchard Company attempted to intervene.
Judgment sustaining the demurrers to the complaint in intervention. Intervener appeals.
REVERSED AND REMANDED, WITH DIRECTIONS TO OVERRULE DEMURRERS AND FOR FURTHER PROCEEDINGS.
Skeen Bros. and Wilkins for appellant.
Halverson and Pratt for respondent Wheelwright.
M. E Wilson for respondent bank.
The receiver of the McGriff Orchard & Canning Company, hereinafter styled canning company, brought this action to recover the sum of $ 1011.66 from the National Copper Bank of Salt Lake City, which it is alleged said bank had in its custody as the depositary of said canning company. The complaint is in the usual form in such cases, with an allegation of a demand and refusal. The Ben Lomond Orchard Company, a corporation, and the appellant here, hereinafter called appellant, pursuant to Comp. Laws 1907, section 2925, filed its complaint in intervention in the afore-mentioned action in which it in substance alleged that it was a judgment creditor of said canning company for the sum of $ 1040, with accrued interest thereon at the rate of eight per cent. per annum from the 1st day of November, 1908; that on the 30th day of October, 1911, execution was duly issued upon a judgment theretofore obtained against said canning company by appellant's assignor, and on said day was delivered to the sheriff of Salt Lake City County; "that said execution was duly served by the said sheriff on the 30th day of October, 1911, and by virtue thereof the said sheriff attached and levied upon all money due from the said National Copper Bank of Salt Lake City, Utah, to the said McGriff Orchard & Canning Company," stating the manner of service, which was as provided by our statute. It is further alleged that said bank rendered a statement to the sheriff, wherein it acknowledged that it was indebted to said canning company in the sum of $ 1011.66, but refused to pay the same to the sheriff, or to apply it in satisfaction of the judgment aforesaid, and that the sheriff has returned said execution as wholly unsatisfied. It is further alleged in the complaint that the said $ 1011.66 is the identical money or indebtedness that the receiver aforesaid seeks to recover in his action. General demurrers, were interposed to the complaint in intervention, both by the receiver and the bank. The court sustained the demurrers, and, the appellant electing not to plead further, judgment was entered against it, from which this appeal is prosecuted.
Appellant insists that the court erred in sustaining the demurrers and in entering judgment dismissing its complaint in intervention.
As we read the contentions of the attorneys for the receiver, the only grounds upon which they seek to sustain the rulings of the trial court, in substance, are:
(1) That the appellant cannot recover in this action because a receiver has been appointed to administer the assets of the canning company, and that he is entitled to the exclusive possession of said assets for the benefit of all the creditors of said company; (2) because the appellant in no event had the right to intervene in this action; and (3) that the appellant has mistaken its remedy if it has any under our statute.
The first ground is clearly untenable. While it may be conceded that ordinarily a receiver is entitled to the assets of an insolvent corporation to the exclusion of all others, yet such is not under all circumstances necessarily the case. But it does not appear upon the face of the complaint that a receiver has been appointed, or that he is entitled to the assets of the canning company.
A general demurrer reaches only defects of substance appearing upon the face of the pleading to which it is directed. It does not appear upon the face of the complaint in intervention that a receiver has been appointed for the canning company, nor that the appellant is not or may not be entitled to the deposit; hence the ruling of the court cannot be sustained upon the first ground.
Nor can the second reason urged by counsel be sustained. We think the facts, alleged in the complaint in intervention bring the case squarely within our statute (Comp. Laws 1907, sec. 2925), which authorizes any person claiming an interest in the subject-matter of a pending action to intervene therein at any time before trial. This is precisely what the appellant did by filing its complaint in intervention.
The third ground urged by counsel for the receiver, in our judgment, should also be overruled. The appellant predicates its claim to the money involved in this action upon a lien which it insists it acquired by levying upon a attaching the money under the execution mentioned, in its complaint, which was served pursuant to Comp. Laws 1907, sec 3240. That section,...
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