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been had; and that, unless a receiver be ap- ically followed, and the courts held, that pointed, the said property will be wholly lost ejectment would not lie against the mort. to plaintiffs.

gagee in possession. Under our statute, With this complaint, the plaintiffs served however, and the statutes of several other a notice, on September 25, 1893, upon the lo- states, a mortgage is not considered a concal agent of the defendant, that an applica- veyance, but is deemed simply a lien, and tion would be made on September 27, 1893, the mortgagor is the owner of the incumberat 10 o'clock a. m., in the equity department ed premises, and cannot be dispossessed exof the superior court, before the judge pre- cept by foreclosure and sale. But while he siding in that department, for the appoint- has a right to remain in possession of the ment of a receiver. The complaint and suni- mortgaged premises until sale thereof, he mons were the only papers served upon the also has a right to place his mortgagee in defendant. Defendant appeared at the time possession; and if he does so for a valuable indicated in the notice, and asked for a con- consideration, he is bound by the stipulations tinuance, for the purpose of procuring affida- of his contract. In this case it appears that vits from Minneapolis, where the main office the appellant took possession of the premwas located, to oppose the application. A ises in dispute with the direct assent and continuance was granted, but, pending a knowledge of the respondents, and, if it hearing upon the application, a temporary does not appear that such possession was obreceiver was appointed, who seems to have tained by fraud, it cannot be ousted in this taken possession of the property in dispute. proceeding, through the medium of a reOn October 17, 1893, the matter came on for ceiver or otherwise. We think the proof hearing before the court, and counsel for clearly shows that the possession of the applaintiff's proposed to read a number of affi- pellant was not obtained by fraud, but that davits in support of some of the allegations the respondents were aware of all of the conof the complaint, which had not been served ditions, as well as of the effect, of their conupon or seen by defendant's attorney. Ob- tract. It also appears from the undisputed jection was made by defendant to the read- evidence filed on behalf of the appellant that ing of the affidavits, on the ground that they the respondents, at the time the receiver had never been served, and that the defend- was appointed, were indebted to the appel. ant had no notice of their contents prior to lant in the sum of $2,500, as above stated; the time when they were offered in evidence. and there is nothing disclosed by the eviThe court overruled the objection, and per- dence which warranted the appointment of mitted the affidavits to be read, granting the a receiver in this case to take the possession defendant an exception. Objection was also and control of the premises from the appelmade by defendant that the petition failed lant. It seems that the main allegations reto charge or allege insolvency on the part | lied upon as showing that the appellant obof the defendant association, or that there tained fraudulent possession of the premises was nothing due or owing to it, or that plain- are that the respondents did not recognize tiffs had no adequate remedy at law. The the validity and binding effect of the condefendant was permitted to read affidavits tract for possession after they became aware on its behalf, and from those affidavits it that it had not been formally signed and exc appears that certain sums due from plain- ecuted by the appellant, and that the appeltiffs to defendant had not been paid, and lant never advanced the $7,500 specified in that the plaintiffs were at that time in de- the contract. It would appear from the allefault in the sum of about $2,500. Upon the gations in the complaint, as well as from hearing, the court appointed a permanent the evidence, that the respondents did recreceiver, over the objection of the defend- ognize and act upon the contract prior to the ant, with power to take charge of and col- time they discovered that it had not been lect the rents of the property theretofore in signed by the appellant; and we think the the possession of the defendant.

fact that it was not signed is not proof of It is contended by appellant that the court fraud on the part of appellant, nor is it, unhad no right or power to appoint a receiv- der the circumstances of the case, in any er in this instance, because the facts show wise material. The appellant recognized that the appellant was a mortgagee, right- the contract and took possession and control fully in possession of the premises which the of the premises under it, and placed it uprespondents seek to obtain possession of in on record. It thus became binding upon the this action. At common law, a mortgagee in appellant, and it could not thereafter be possession of real property, after condition heard to say that it was not its agreement. broken, was deemed the absolute owner, and, It was therefore a valid agreement as to as such, had a right to the possession of the both parties. Muscatine Waterworks Co. v. property mortgaged. In fact, the mortgage Muscatine Lumber Co. (Iowa) 52 N. W. 108; was itself considered a conveyance of the Dows v. Morse (Iowa) 17 N. W. 495; Gas property mortgaged, subject to being de- Co. v. Kibby (Ind. Sup.) 35 N. E. 392. And feated upon payment of the amount due the evidence shows, as matter of fact, that thereon. The mortgagee, even before con

on- | the $7,500 was advanced by appellant in acdition broken, had a right to take posses- cordance with the terms of the agreement, sion of the mortgaged premises, and it log- and expended by it in completing the building and in paying debts theretofore contract- affidavits or papers, copies of which should ed. There having been no fraud practiced be served with notice of the application. by the appellant in obtaining the possession And in Jacobs v. Miller, 10 Hun, 230, the of the premises in question, and it being un- doctrine is laid down that a moving party disputed that the respondents were indebt- has no right to read, on motion, affidavits ed to the appellant, and it appearing that not served. the appellant was rightfully in possession, the order of the court below is reversed. the court had no right to deprive it of its possession by the appointment of a receiver. LUYT, C. J., and SCOTT, J., concur. Beach, Rec. $ 80; High, Rec. & 419.

Nor do we think the evidence shows that the building was injured or not properly con

(11 Wash. 288) structed through any fault of the appellant

BRUNDAGE et al. v. HOME SAVINGS & or its agents. Nothing was done by the ap

LOAN ASS'N OF MINNEAPOLIS pellant, while in possession, that it was not

et al. (No. 1,384.) clearly authorized to do by the express

(Supreme Court of Washington. March 1, terms of the agreement. The action is in

1895.) substance and effect an action of ejectment EFFECT OF APPEAL-Compensation of Receiver. to recover the possession of the property

1. The perfecting of an appeal from an orrightfully, as we have said, in the possession der appointing a cemporary receiver of mortgaged of the defendant; and the mere allegations property, and the filing of a supersedeas bond,

divest the court appointing him of power to of fraud, mismanagement, and incompetency,

make any further order or take any steps in rewithout corroborative proof, do not entitle spect to the receivership, and deprive the rethe respondents to the equitable relief de- ceiver of any further power to act under such manded. Courts will not appoint a receiv

appointment.

2. A temporary receiver appointed to take er except when it is necessary either to

charge of mortgaged property, in violation of the prevent fraud, protect property from injury, contract rights of the mortgagee, is entitled to or preserve it from destruction, and mere | be allowed out of the funds in his hands for allegations of these facts are not sufficient

necessary and proper disbursements while in

charge of the property, but not for compensation to authorize a court to appoint a receiver.

for his services, for which he must look to the The plaintiff must establish such facts, and party at whose instance he was appointed; but make out a strong case for relief, before such

such receiver's attorneys, employed by leave of

the court, are entitled to a reasonable compensaappointment will be made. Baker v. Back

tion. us, 32 Ill. 79; Roberts v. Sutherlin, 4 Or.

Appeal from superior court, Spokane coun220; Phyfe v. Riley, 15 Wend. 248; Frink v.

ty; Jesse Arthur, Judge. Leroy, 49 Cal. 314; Hamilton v. Transit Co.,

Action by Jennie Brundage and Byron 3 Abb. Pr. 255. It is well settled that a

Brundage against the Home Savings & Loan mortgagee in possession, so long as there

Association of Minneapolis, Minn., and the is any question whether the mortgage debt

Northwestern & Pacific Hypotheek Bank, for has been paid in full, cannot be dispossessed by an action in ejectment. Jones, Mortg. 88

the appointment of a temporary receiver of 674, 1093; Moulton v. Leighton, 33 Fed. 143.

certain mortgaged property, for its restitu

tion, and damages for withholding it, and for If it were true that the appellant was committing waste upon the premises, that fact

any other just and proper relief. From an

order appointing such receiver, the loan asalone would not be sufficient to authorize the appointment of the receiver. State v.

sociation appeals. Reversed. Second Judicial District Court (Mont.) 34

Samuel R. Stern and Lucien J. Birdseye, Pac. 609. In such a case the plaintiff could for appellant. maintain an action at law for damages, or defendant might be restrained by injunction. There is no allegation or proof of insolvency ANDERS, J. This is an appeal from an on the part of the appellant. On the con- order made by the superior court of Spokane trary, the proof shows that it is able to county, discharging the receiver of certain respond in damages for any injury it may mortgaged real property, granting him and cause to the premises, and therefore equi- his counsel allowances for services and distable relief is not necessary. Again, it ap- bursements, and passing the receiver's acpears that the respondents have acted un

counts. The court below, on September 27, der this contract and received benefits from 1893, appointed one Morris Fox temporary it, and they are therefore estopped from de- receiver of the property described in the nying its existence and force.

complaint in an action then pending; and Objection is also made by the appellant upon October 17, 1893, after hearing upon that the respondents had no right to read affidavits, Fox's appointment was made peraffidavits upon the hearing of the motion for manent. He qualified on October 19, 1893, the appointment of a receiver without first and an appeal from the order thus appointserving them upon the appellant, and, in our ing him was taken and perfected on October opinion, this objection is well taken. It is 21, 1893, and a supersedeas bond given and said in High on Receivers (section 8t), that filed on that day. The order appointing the motion should properly be founded on Fox temporary receiver limited his powers

to the collection of rents, and reads as fol- law. Upon the appeal to this court from the lows: "Therefore, it is ordered that Morris order appointing this receiver, we held that Fox be, and is hereby, appointed temporary the court was not warranted in making the receiver over said property, and all moneys appointment. It therefore necessarily foldue and becoming due from said property, lows that the possession of the receiver was for the purpose of receiving, collecting, and wrongful, and that the allowances made by holding the rents and income from the said the court as compensation for his services property, and that he receive, collect, and were not properly chargeable to the funds hold the said rents, income, and moneys de- in his hands, for the reason that such funds rived therefrom until the further order of were the property of the appellant herein this court, and subject to the orders of this under the contract authorizing it to collect court." By virtue of this order, Fox collect- the rents and profits, and have exclusive conted October 1, 1893, rent amounting to $67, trol of the property placed in the custody of and on October 17, 1893, insurance moneys the receiver. It is the policy of our law that amounting to $96.97, and made no other col- the losing, and not the winning, party shall lections until after November 1, 1893, which pay the costs. We see no objection to allowwas after the supersedeas bond had been ing the receiver the amount of his necessary given and an appeal from the order appoint- and proper disbursements while in charge ing him perfected. Notwithstanding the fact of the property, but for his own compensathat the appeal had been duly perfected, the tion he must look to the respondents, at court permitted said Fox to testify as to whose instance he was appointed. It seems matters collected and matters attended to that the attorneys employed by him were after this time, and confirmed his report so employed by leave of the court, and they with regard thereto, all against the objection will be entitled to reasonable compensation of the appellant, duly entered. The court for their services. But, inasmuch as it does allowed the receiver for his services $175, not appear that their services resulted in and to two attorneys, whom he claimed it the collection of the money sued for, we was necessary to employ (although not part- think the amount allowed, viz. $100, was ners), $100, and ordered the discharge of the larger than it should have been. For aught receiver and his bondsmen, and passed his that appears in the evidence, all that was accounts, including items received and ex- done by them was to institute a suit for the pended both before and after the perfecting collection of $300, due for rent. For these of the appeal. Aside from the objections to services, we think $50 is an ample compenreceiving and passing upon the report of the sation, receiver and his accounts, it was urged by The order of the court discharging the the appellant that the amounts allowed were

receiver and his bondsmen, and allowing grossly excessive, and wholly unwarranted and passing the accounts of the receiver, is by the facts or by law; and the point is reversed; and the cause is remanded to the made here that the superior court had no court below, with directions to disallow the right to make any order after the appeal receiver's claim for personal services, and from the order appointing the receiver was to reduce the amount of the compensation perfected, and a supersedeas bond filed. of his attorneys to the sum of $50.

It was said by this court in State v. Superior Court, 6 Wash. 112, 32 Pac. 1072, that HOYT, C. J., and SCOTT, J., concur. "the effect of giving the notices of appeals and supersedeas bonds as aforesaid was to remove said matters to this court, and to de

(11 Wash. 254) prive the superior court of any jurisdiction

ARTHUR v. SHERMAN et al. to proceed in the premises otherwise than as to the preparation thereof for a hearing in

(Supreme Court of Washington. Feb. 20,

1895.) this court in pursuance of said appeals.”

ACTION ON REPLEVIN Bond SIGNATURE BY And what was then said was based upon the

AGEXT-LIABILITIES OF SURETY-REprovisions of our statute, which are that

TURN OF Goods. “when such bond, further conditioned as 1. When plaintiffs in replevin take posseshereinabove prescribed, has been filed, the sion of the property under bond, they cannot alappeal shall operate so long as it shall re

lege that their signatures were aflixed by an un

authorized agent. main effectual under the provisions of this 2. Signatures to a bond will be presumed to act to stay proceedings upon the judgment have been written in the order in which they apor order appealed from.” Laws 1893, p. 123.

pear. From this it clearly appears that the court

3. Sureties on a bond, who sign under what

purports to be the signature of the principal, below had no right to make any order or thereby adopt such signature and are estopped to take any steps in regard to the receivership deny its genuineness. after the appeal to this court had been per

4. A sheriff, holding a special execution for

the return of property taken under a replevin fected. It follows that the receiver him- bond, called on defendants, who informed him self, being an officer of the court, was like- that they had nothing to do with it. He afterwise deprived by the appeal of any further

wards found the property in the hands of a third

person, who allowed him to check up the differpower to act, and everything done by nim

ent articles, but forbade their removal. Hdd, thereafter was done without authority of that this was not such a return of the property as would excuse plaintiffs from liability on their have adopted such signatures, and to have bond.

estopped themselves from questioning their 5. The failure of plaintiff to return goods

genuineness. It follows that the bond was taken under a replevin bond after the suit was decided against him is not excused by the fact of force against the sureties, as well as the that he was prevented from returning the goods principals, and that they must abide its conby an injunction, issued by a stranger after

ditions. proper demand was made by defendant for their return.

It appeared from the proofs that, upon the

special execution for the return of the propAppeal from superior court, Pierce county;

erty issued to the sheriff, he called upon the John C. Stallcup, Judge.

defendants, and sought of them possession Action by J. M. Arthur against Tabor A.

of the property or information as to its Sherman and others to recover upon a bond

whereabouts, and was informed by them that given by the defendants in an action of re

they had nothing to do with the matter; plevin. From a judgment for defendants,

that thereafter he visited a mill, where the plaintiff appeals. Reversed.

property in question was found, connected Greene & Turner, for appellant. Crowley, with other machinery, and in operation by Sullivan & Grosscup, for respondents. one in no way connected with the replevin

suit; that he was allowed to check up the HOYT, C. J. This action was brought to different articles, to see that all of the proprecover upon a bond given by the defendants erty described in the execution was there, in a replevin action to secure the return to but was not allowed to do anything further them of property of which the plaintiff had towards taking possession thereof. It was obtained possession by filing the bond and not made to appear that anything further affidavit required by the statute. Three rea- than this had been done by or on behalf of sons are suggested why the action could not the plaintiff to secure possession of the propbe maintained: First, that the bond was in- erty, and, in our opinion, no such possession valid; second, that, under the execution is- was obtained as to excuse the defendants sued in favor of the plaintiff in the replevin from complying with their contract to return suit, such action was taken by the plaintiff, the property, or pay its value. The condior the sheriff in his behalf, as to be equiva- tion of the bond was not that the defendants lent to a return of the property by the de- would allow the plaintiff to hunt up the propfendants, in compliance with the conditions erty, and get it if he could, but was that they of the bond; and, third, that the defendants would return it to him if he succeeded in were prevented from making return of the the action. And while it is true that the property by injunction proceedings institut- property in question was so heavy and bulky ed by one claiming adversely to plaintiff and as to make it difficult of actual manual dedefendants in the replevin action.

livery, and that the rule as to delivery is The objection to the bond is founded upon less strict as to such property than as to the fact that the names of the principals smaller articles, yet it was their duty to were signed thereto by G. L. McKay, their take such action as would enable the plainattorney, who, it is claimed, was not author- tilf to obtain actual possession of the propized by them so to do. Elaborate argument erty. Until they had done this, they had has been made by counsel in regard to the not returned it to him, within the meaning validity of the bond, but the view we take of of the statute and the conditions of the bond. the contract of the sureties will make it un- The plaintiff had possession at one time after necessary for us to discuss many of the ques- the suit to determine the title thereto had tions argued by counsel.

been commenced. The defendants could By means of the bond, the principals ob- have allowed him to retain such possession, tained possession of the property; hence they and by so doing have escaped any liability are bound by its conditions.

The only ques- to safely keep and produce the property. In. tion is as to the liability of the sureties. It stead of doing so, they availed themselves of is contended on their behalf that, since the the provisions of the statute, and took the signatures of the principals were unauthor- goods from the plaintiff, and, having been deized, the bond and their liability as sureties feated in the action, are bound to see that thereon must be construed as though there the substantial possession is returned to him, had been no signature by the principals. or be held liable for the value of the propThis contention cannot be sustained. In the erty. The injunction proceedings instituted absence of proof to the contrary, it will be by a stranger to the replevin action, under presumed that the signatures to the bond the circumstances disclosed by the record, were placed thereon in the order in which had no effect upon the rights of the parties. they appear; and, since the signatures of Such injunction was not issued until after the the principals by their attorney appear upon defendants had been given an opportunity to the bond before those of the sureties, it must return the property if they had been in a sitbe presumed that such signatures were there uation to do it, and sufficient demand for when the sureties signed. By signing un. such return had been made upon them. Their der what appeared to be the signatures of failure to comply with such demand authorthe principals, the sureties, as against the ized the plaintiff to assume that a return of obligee named in the bond, must be held to the property could not be had.

*

It follows that the bond was of force and serve a copy thereof on the adverse against the principals and sureties therein party, and shall also serve written notice of named, and that its conditions had been vio- the filing thereof on any other party who lated, and a right of action thereon created has appeared in the cause. Within ten days in favor of the plaintiff. The judgment will after such service any other party may file be reversed, and the cause remanded, with and serve

on

the proposing party, any instructions to enter a judgment for the amendments which he may propose to the plaintiff, against the defendants, for the val- bill or statement. Either party may then ue of the property, as determined by the trial serve upon the other a written notice that court in its findings of fact.

he will apply to the judge of the court be

fore whom the cause is pending or was tried, DUNBAR, ANDERS, and GORDON, JJ., at a time and place specified, * to setconcur.

tle and certify the bill or statement." Laws 1893, p. 114. It is urged on behalf of the

appellant that, inasmuch as the statement (11 Wash. 409)

of facts in this cause had been properly cer FIRST NAT. BANK OF ABERDEEN v. tified by the trial court, this court has no ANDREWS et al.

authority to set it aside or disregard it, for (Supreme Court of Washington. March 16, the reason that the same act provides (sec1895.)

tion 13) that "the certifying' of a bill of RECORD ON APPEAL-STATEMENT OF Facts - No exceptions or statement of facts provided TICE OF FILING-DISMISSAL OF APPEAL.

for by this act, and the filing and service of 1. A certified statement of facts, notice of

the proposed bill or statement, the notice of the filing of which was not served on all parties appearing in the action, as required by Laws

application for the settlement thereof, and 1893, c. 60, § 9, will be stricken from the rec- all other steps and proceedings leading up ord.

to the making of the certificate shall be 2. The fact that the statement of facts is

deemed steps and proceedings in the cause stricken from the record for lack of service does not authorize the dismissal of the appeal.

itself, resting upon the jurisdiction originalAppeal from superior court, Chehalis coun

ly acquired by the court in the cause, and ty; Mason Irwin, Judge.

no irregularity or failure to pursue the steps Action by the First National Bank of Aber

prescribed by this act on the part of any pardeen against Julius Andrews, George H.

ty, or the judge, shall affect the jurisdiction

of the judge to settle or certify a proper bill Keith, and otbers, to foreclose a mortgage. There was a judgment for plaintiff, and de

of exceptions or statement of facts." This fendant Andrews appeals. On motion to

statute has so changed the former law that

the matters therein mentioned which were forstrike the statement of facts from the files, and to dismiss the appeal, motion granted as

merly deemed jurisdictional are no longer to statement of facts, and judgment affirm

such; but does it necessarily follow that a

statement of facts which has not been served ed.

in accordance with law is a proper statement Hogan & McGerry and Ben Sheeks, for

of facts, even under this provision of the appellant. Wm. O. McKinlay, 0. V. Linn,

statute? As will be seen, the object in reand J. B. Bridges, for respondent First Na- quiring the notice of the filing of the statetional Bank. Austin E. Griffiths, for re

ment to be served on all the parties who spondent Keith.

have appeared in the action is to give such

parties opportunity to propose any ANDERS, The respondent moves the amendment or amendments they may desire court to strike the statement of facts from to have made to such statement. It may, the files herein, and to dismiss the appeal, therefore, be taken as true that the state. upon the grounds that no notice of filing the ment of facts certified by the court is a statement of facts was ever served upon statement of the facts under the circumstandefendant Keith, and that no notice, either ces as they appeared at the time of the cerwritten or oral, was ever given the defend- tification. But it may be that if a proper ant Keith of the filing, signing, or settling notice had been served upon the defendant of the said statement of facts by the appel- Keith, as required by law, he would have lant, or by any one for him. It appears interposed amendments to the statement from the record that the defendant Keith which would have been inserted therein by filed an answer in this cause in the court the court. While this failure to give the below, and thereby appeared in the action. notice does not affect in any way the jurisA proposed statement of facts was prepared diction of the court to settle and certify a by the appellant, and filed and served upon statement of facts, we think it cannot be the respondent bank, but it is admitted that said that the statement in question was a no notice of the filing thereof was ever proper statement of facts in this cause. We served upon the defendant Keith. Section think that a proper statement must be such 9, c. 60, Laws 1893, provides that “a party a one as has been settled after all notices desiring to have a bill of exceptions or state- have been given to the parties as prescribed ment of facts certified must prepare the by law. This court has many times held same as proposed by him, tile it in the cause that statements of facts must be stricken

an

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