McClelland v. Smith

222 P. 349, 74 Colo. 429, 1924 Colo. LEXIS 287

• Court: Supreme Court of Colorado
• Decided: January 7, 1924
• Docket: No. 10,800
• Status: Published

Opinion

Mr. Justice Allen

delivered the opinion of the court.

On or about April 29, 1922, there was filed in a receivership proceeding pending in the district court of Clear Creek county, an application to- remove the receiver and to set aside a sale made by the receiver. The application was filed by one McClelland, a stockholder of The Merchants & Miners National Bank of Idaho Springs, a banking corporation which was in charge of the receiver above mentioned. The application was set for hearing, to be held October 5, 1922. On motion of McClelland, the hearing was continued to October 21, 1922. On October 1, 1922, there was a second application on behalf of McClelland for a continuance. On October 21, 1922, this second motion for a continuance was denied, and the court proceeded to try the case on McClelland’s petition, and on the report of the receiver of the sale of certain property. So far as can be gathered from the record, the petition to remove receiver was denied, and it is stated on both sides that the report was approved. The only alleged error argued is the court’s failure to grant a second continuance. The continuance was asked on the ground of illness of McClelland. We are unable to hold that the court abused its discretion in denying the second continuance, and, therefore, we cannot disturb the ruling. Ford v. Simmons, 52 Colo. 249, 121 Pac. 167.

Error is assigned to the court’s failure to remove receiver and also the court’s approving the receiver’s report. The record shows no error in this respect, in view of the opinion herein on the matter of the second continuance.

The application for a supersedeas is denied and the judgment is affirmed.

Mr. Chief Justice Teller and Mr. Justice Burke concur.