Little v. Little

234 P.2d 832, 125 Mont. 278

• Court: Montana Supreme Court
• Decided: July 31, 1951
• Docket: 9077
• Status: Published

Opinions

MR. JUSTICE BOTTOMLY:

This is an appeal from an order refusing to vacate an order appointing a receiver.

The Complaint. June 26, 1950, complaint was filed in the district court of Flathead county, Montana by Winifred A. Little, as plaintiff, against Walter L. Little and L. E. Little, defendants, alleging: That plaintiff is the owner of an undivided one-half interest in one 33 foot Spartan Royal Mansion House Trailer, serial No. 33-49-492, subject to a conditional sales contract, dated January 6, 1949, on which there is a balance due of eight monthly payments at $140.22 per month, which installments plaintiff avers she is informed have been made in full up to date; that plaintiff acquired a one-half interest in said personal property by the payment thereon of $1,000.00 in cash and she also paid $380.00 in cash on the furnishings in the trailer; that at the time of the purchase thereof plaintiff and defendant were married and residing in the state of Washington; that under the laws of such state the trailer became community property owned equally by the husband and wife; that since acquiring the property by an order of the Superior Court of Benton County, Washington, in an action brought by the wife against her husband, the parties were divorced; that said court ordered and decreed that the defendant Walter L. Little return the trailer house to the state of Washington, and that the trailer be sold within 60 days of the date of said order, which was duly entered on the 2nd day of September 1949; that defendant removed the said trailer house to Flathead county, Montana, where it now is; that defendant has refused to return the trailer to the jurisdiction of the court in Washington, or to make any payment as provided in the court’s order and decree, a copy whereof is attached to the complaint; that the defendant Walter L. Little refused to deliver possession of said personal property to the plaintiff; that he has taken the same from her possession; that he has mortgaged it to his father, L. E. Little, one of the defendants herein, for the sum of $6,000.00; that unless a receiver is appointed to take possession of said trailer and conserve and sell the same, the defendant Walter L. Little will, as plaintiff is informed and verily believes, remove the same from the jurisdiction of the district court of Flathead county so as to deprive the court of any power in the premises, and that plaintiff is without funds or means to put up money for a bond.

Without any further showing for the necessity of a receiver, and on the 26th day of June, 1950, the district court of Flathead county issued an order appointing Richard Walsh, sheriff of Flathead county, Montana, as receiver to take into his possession the described trailer.

August 22, 1950, the district court of Flathead county sus-, tained part of the demurrer of defendant Walter L. Little to the complaint. August 23, 1950, plaintiff served and filed an amended complaint.

The oath of sheriff Richard P. Walsh was subscribed and sworn to before the deputy clerk of court on the 20th day of November, 1950 but not filed until December 8, 1950, on which date he made return as follows:

“I hereby certify that I received the annexed order appointing Receiver on the 26th day of June, 1950, and that I executed the same by seizing and taking into my possession 1 —1949 Spartan Royal Mansion Trailer Coach, with electric refrigerator, serial number 33-49-492, and that I still retain the same, have the same fully covered by insurance against fire, theft and general insurance against loss and am holding it until the further order of this court.

“Signed at Kalispell, Montana, this 30th day of November, 1950.

“Richard P. Walsh

Sheriff of Flathead County

Receiver and as Receiver.”

November 22, 1950, defendants filed and noticed their motion to dissolve and vacate the order appointing the receiver. December 8, 1950, the order appointing receiver issued June 26, 1950, was filed with the clerk. Defendants’ motion to dissolve and vacate the order appointing receiver was heard by and submitted to the court December 20, 1950, and by order made January 25, 1951, was denied. March 12, 1951, notice of appeal to this court from the last mentioned order of January 25, 1951, was served and filed.

In this court plaintiff has filed a motion to dismiss the appeal on the grounds: That defendants’ motion to vacate the order appointing the receiver was made more than sixty days after the order making the appointment dated June 26, 1950; that defendants’ motion to dissolve and vacate the receivership was dated November 22, 1950; and that said motion to vacate the order appointing a receiver was based upon conditions existing at the time the order appointing receiver was made and not upon facts occurring subsequent to the making of the original order.

However, defendants are not appealing from the original order dated June 26, 1950, but not filed with the clerk, R. C. M. 1947, sec. 93-8004 until December 6, 1950, but their appeal is from the order dated and filed January 25, 1951, denying defendants’ motion to vacate the order appointing the receiver.

R. C. M. 1947, sec. 93-8003, inter alia, provides that an appeal may be taken “from an order * * * refusing to vacate an order appointing * * * a receiver”. Compare, State ex rel. Rankin v. Banking Corporation, 80 Mont. 49, 50, 51, 257 Pac. 1020.

R. C. M. 1947, sec. 93-8004, specifies such an appeal may be taken “within sixty days after the order * * * is made and entered in the minutes of the court filed with the clerk.” Emphasis supplied.

The court’s order here under consideration was made and entered by the clerk on January 25, 1951. The notice of appeal herein was timely. It was dated, served and filed March 12, 1951. The motion to dismiss the appeal being without merit is denied. Compare: Helena Adjustment Co. v. Predivich, 98 Mont. 162, 37 Pac. (2d) 651, 652; Taintor v. St. John, 50 Mont. 358, 363, 146 Pac. 939; Forrester v. B. & M. Co., Mont. 430, 434, 435, 56 Pac. 868.

The next question is: Did the district court have jurisdiction to make the order appointing a receiver?

Here plaintiff is suing on a foreign judgment of the Superior Court of Benton county, Washington, dated and filed September 2, 1949. This judgment assumes to grant a decree of divorce to plaintiff against defendant and a like decree to defendant against the plaintiff. It next assumes to order the defendant Walter L. Little to return the Spartan house trailer to Benton county, Washington, not later than a date certain to there be sold and the money equally divided between the parties. The court further ordered that should the defendant fail to return the house trailer as directed, plaintiff be awarded $1,000 by way of alimony, in lieu of all other payments for her interest in the community property of the parties. The court next decreed that plaintiff have a specific lien on another separate and distinct trailer described as a “Covered Wagon house trailer then situated at 231 ‘H’ Avenue, North Richland, Washington,” and it restrained and enjoined the defendant from removing the last described trailer being the one on “II” avenue pending settlement. The court then further ordered, adjudged and decreed that the plaintiff Winnifred A. Little shall relinquish possession of the certain Covered Wagon house trailer belonging to the defendant by September 3, 1949.

Whatever interest the plaintiff had in the Spartan house trailer was merged in the judgment and decree of the Benton county court dated September 2, 1949.

There resulted from the Benton county court’s order, judgment and decree just one clear-cut judicial determination, namely, that the defendant Walter L. Little, not having returned the Spartan house trailer to Benton county, Washington, now owes to the plaintiff, Winnifred A. Little, the sum of $1,000.00. This suit is on that foreign judgment and for the debt obligation therein imposed. The subsequent order of the Benton county, Washington court dated and filed December 22, 1949, neither modified nor annulled the judgment and decree of September 2, 1949, but was implementing directive to defendant.

The instant action brought in the district court of Flathead county to recover a debt, is a straight law action regardless of the nature of the original cause instituted in the state of Washington. See 3 Freeman on Judgments (5th Ed.) section 1447, page 2979. As was said in Titus v. Wallick, 306 U. S. 282, 291, 59 S. Ct. 557, 562, 83 L. Ed. 653: “The suit upon it [the foreign judgment] is upon a different cause of action from that merged in [such foreign] judgment.” See Vaughn v. Osborne, 103 Okl. 59, 229 Pac. 467; 30 Am. Jur., Judgments, sec. 144, p. 896, and cases cited; 50 C. J. S., Judgments, sec. 870, p. 445; 15 R. C. L. sec. 381, p. 902.

There is no jointly owned property here. Whatever interest plaintiff had in this Spartan house trailer was merged in the Washington court’s judgment and decree. All plaintiff has in her Montana action is a suit on the debt created by the judgment and all she may seek here is a money judgment.

One cannot rightfully procure a receiver for property in which one has no interest. See, Lyon v. United States F. & G. Co., 48 Mont. 591, 140 Pac. 86, Ann. Cas. 1915D, 1036. This court has consistently held that where, as here, the action is merely for the collection of a judgment debt the relief by receiver does not lie. The statute providing for .the appointment of receivers, R. C. M. 1947, sec. 93-4401, has been on the books for many years, and as far back as 1894 this court carefully analyzed each of its divisions to determine whether any authority could .be found therein for the appointment of a receiver in an action on debt; and this court has declared that no such authority exists under the laws of this state, or can be found in the text or context of the statute. Regardless of what the courts of other jurisdictions may hold, the rule is well established here. Compare: State ex rel. New York Sheep Co. v. Eighth Judicial District Court, 14 Mont. 577, 594, 37 Pac. 969; Berryman v. Billings Mutual Heating Co., 44 Mont. 517, 121 Pac. 280. See: Scholefield v. Merrill Mortuaries, Inc., 93 Mont. 192, 207, 17 Pac. (2d) 1081; Blood v. Blood, 110 Mass. 545, 547; High on Receivers, 4th Ed., sec. 20, p. 28, sec. 41, p. 60, sec. 755, p. 897.

Here the plaintiff has a plain, speedy and adequate and compíete remedy at law. Even in an equitable action, this court has consistently stated that because of the extraordinary harshness of the remedy (by receiver) courts of equity have been reluctant to apply it. If the applicant has any other remedy, the application will be denied, since the remedy by receivership is an extraordinary one, never to be allowed except upon a showing of necessity therefor. Prudential Securities Co. v. Three Forks etc. R. Co., 49 Mont. 567, 144 Pac. 158.

Here all the court had before it was the allegation in the complaint “that unless a receiver is appointed to take possession of said trailer and conserve and sell the same, the defendant, Walter L. Little, will, as plaintiff is informed and verily believes, remove the same from the jurisdiction of this court so as to deprive the court of any power in the premises * * There is no affidavit or statement of facts or circumstances alleged; the allegation is a mere conclusion of the pleader and is far short of a statement of facts to be proved in order to authorize a court to appoint a receiver. See, Bushman v. Bushman, 311 Mo. 551, 279 S. W. 122.

Chief Justice Brantly stated the rule in Brown v. Erb-Harper-Rigney Co., 48 Mont. 17, p. 27, 133 Pac. 691, 694, as follows: “The remedy of a receivership, drastic and violent as it is in effect, because it deprives the defendant in limine of the possession of his property, should not be allowed in any case except upon a statement of facts showing that it is necessary to prevent injury to the rights of the plaintiff pending the action. ‘The power to appoint a receiver is to be exercised sparingly and not as of course. A strong showing should be made, and even then the authority must be exercised with conservation and caution. ’ ’ ’ Emphasis supplied. Hickey v. Parrot Silver & Copper Co., 25 Mont. 164, 64 Pac. 330; Benepe-Owenhouse Co. v. Scheidegger, 32 Mont. 424, 80 Pac. 1024. Compare: Stoner v. Hannan, 113 Mont. 210, 219, 127 Pac. (2d) 233; Doggett v. Johnson, 72 Mont. 443, 234 Pac. 252; Pereira v. Wulf, 83 Mont. 343, 348, 272 Pac. 532; Masterson v. Hubbert, 54 Mont. 613, 173 Pac. 421; High on Receivers, sec. 755, p. 897.

The reason for this rule of certainty of proof of the conditions precedent to the exercise of this power of a court in appointing a receiver is that the power is purely auxiliary and as such directs the possession and right of enjoyment of property to be transferred from the legal owner to a stranger — the receiver. The character of this power when exercised requires a greater delicacy of discrimination and a greater responsibility of the court than most any other power conferred upon a court. For these reasons every requirement of the proof of the necessity must be meticulously complied with in order to confer jurisdiction and stay within the due process of law. Compare: Bushman v. Bushman, supra; Hackler v. Farm & Home Savings & Loan Ass’n, 6 F. Supp. 610, 614.

We do not approve of appointing receivers from the ranks of sheriffs and other public officers of the state.

Under the facts in this case legal remedies were and are available to plaintiff, but she was not entitled to have a receiver appointed. Accordingly the order refusing to vacate the order appointing the receiver is set aside and the order appointing the receiver is vacated. Let remittitur issue forthwith.

MR. CHIEF JUSTICE ADAIR, and MR. JUSTICE FREEBOURN, concur.