Cummings v. Steele

59 P. 15, 6 Idaho 666, 1899 Ida. LEXIS 45

• Court: Idaho Supreme Court
• Decided: November 28, 1899
• Status: Published

Opinion

QUARLES, J.

— This is a proceeding to review an order appointing one D. H. Haner receiver in an action brought in the district court in and for Nez Perces county by N. S. Soper, plaintiff, against Charles H. Cummings and S. T. Jones, defendants, made by the district judge after the defendants had appeared in the action. The motion for said order was heard, and the order made, without notice to the defendants. The said defendants commenced this proceeding to review said order on the ground that no notice of the application therefor had been given defendants, for which reason the district judge had no jurisdiction to make it. The original action was commenced in the district court, Nez Perces county, July 25, 1899. On August 2, 1899, said ■defendants appeared in the action, and filed their demurrer, •after which, and on April 3, 1899, application ex parte was made for the order appointing a receiver, and the receiver appointed without notice to the defendant. The rule in regard to notice in such case is that after appearance such notice must 'be given, except in case of emergency, when the defendant has absconded, and material injury will result to plaintiff unless the order he forthwith made. No such showing was made in the case before us. The order was therefore made without jurisdiction, and therefore void. (See Rev. Stats., secs. 4020, 4892; High on Receivers, sees. 111-117, inclusive; Larsen v. Winder, 14 Wash. 109, 53 Am. St. Rep. 864, 44 Pac. 123, and authorities there cited.)

The affivadit of the plaintiff presented and used on the hearing of the motion for the order appointing a receiver ends with the following statement, to wit: “That on this first day of August, 1899, the said defendants, Charles H. Cummings and S. T. Jones, have appeared generally, by their attorney, George W* Tannahill, filing and serving a demurrer to said complaint in said action.” The demurrer mentioned had on August 1st been served, but was not filed until August 2d. Notwithstanding the statement in said affidavit above quoted, the district judge in his return herein, says: “Prior to said appointment, to wit, on August 2d, the defendants, by their attorney, George W. Tannahill, filed at Lewiston, Idaho, where said cause was pending, a demurrer to said complaint, of which the said judge had no knowledge at the time of making said order.”

For the reasons herein given, the order, made, by the defendant, as district judge, at chambers, at Moscow, Idaho, on the seventh day of August, 1899, in the action of N. S. Soper, plaintiff, against Charles H. Cummings, et al., defendants, appointing D. H. Haner, receiver, and directing the duties to be performed by the said receiver, should be annulled, and it is só ordered. Costs awarded to plaintiffs.

Huston, C. J., and' Sullivan, J., concur.