State ex rel. New York Sheep Co. v. Eighth Judicial District Court

37 P. 969, 14 Mont. 577, 1894 Mont. LEXIS 82

• Court: Montana Supreme Court
• Decided: July 19, 1894
• Status: Published

Opinions

De Witt, J.

The question of the discretion of the district court is not before us, so it may be considered as a conceded fact that it was properly shown to the district court that the sheep were in danger of suffering material loss and injury if left in the hands of the sheriffs, and that the appointment of a receiver would tend to avoid this loss and injury.

We will turn our attention for a moment to one matter which we meet at the threshold of this case. It seems that the Severance Mercantile Company filed a complaint, and commenced a separate action, asking to have this receiver appointed. It is objected that there is no such thing known as an action for the appointment of a receiver, but that such appointment is ancillary to another action; that is, an action of such a nature that a receiver may, be appointed therein, (French Bank case, 53 Cal. 495; Jones v. Bank of Leadville, 10 Col. 464.) But perhaps it would be fair to regard what appears to be a complaint of the Severance Mercantile Company against the New York Sheep Company, Phelps, and the two sheriffs, as simply a petition or application of the Severance Mercantile Company, looking to an appointment of a receiver in the case which was already pending in the district court, namely, the Severance Mercantile Company against the New York Sheep Company. We are willing at least to so regard the situation of the parties. Then, the question of discretion not being under review, it remains to be decided whether, under the facts shown, the court had jurisdiction to appoint this receiver; that is to say, the question is this: If two creditors each sue one and the same debtor on simple money demands, and each creditor sues out in his case a writ of attachment, under which writs two sheriffs of different counties levy upon property of the debtor in their respective counties, then has the court jurisdiction to appoint a receiver of the property so attached and held by such sheriffs?

It is also conceded, of course, that the showing was made of danger of loss and material injury. Stated more simply, the proposition perhaps may be reduced to this: In an action on a simple money demand, for a plain money judgment, in which action property has been attached, has the court power to appoint a receiver of the attached property, if it appears that there is danger that it will be materially injured?

The statute—quoting the portion which is pertinent, or which was relied upon by respondent—is as follows: “A receiver may be appointed by the court in which an action is pending, or by the judge thereof: 1. In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim, or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of any party whose right to, or interest in, the property or fund, or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured.....6. In all other cases where receivers have been heretofore appointed by the usages of courts of equity.” (Code Civ. Proc., § 229.) Counsel for the respondent said that he relied partly upon the sixth subdivision of the section. But it is scarcely seriously urged that the appointment of the receiver was justified by that subdivision of the section, or that receivers have heretofore been appointed by the usages of courts of equity in a simple law action on debt. The California supreme court said, in-reference to this subdivision, as follows: “The five subdivisions containing such specifications are followed by the sixth, which provides for the appointment where ‘receivers have heretofore been appointed by the usages of courts of equity/ which expression we may conceive to be equivalent of that employed in the third subdivision of the one hundred and forty-third section of the former Practice Act—‘such cases as are in accordance with the practice of courts of equity jurisdiction.’ Either of these expressions simply means that, in addition to the particular instances mentioned in the preceding subdivisions, the appointment should be made by the district court, as a court of equity, in the other suits in which the power could have been employed had there been no statute on the subject, and cannot be construed as authorizing the appointment in an action at law.” (Bateman v. Superior Court, 54 Cal. 285.)

Counsel for respondent next urge that authority for this appointment is found in subdivision 1 of section 229. Before proceeding to read that subdivision, we remark, in passing, that there is some argument of expediency as to the making of the appointment of the receiver in this case as well as in, perhaps, other actions of debt where there are numerous attachments of property. That argument should, of course, be addressed to the law-making department of the government, and cannot be seriously entertained by a court when it stands in the face of plain language of a statute. We have examined our statute with some assiduity in search of the power of. the district court to make this appointment, for we believe that the discreet exercise of such a power would sometimes be beneficial; but we cannot find the power given by the law. But the attachment law is not unmindful of the care and disposition of the attached property. A bond must be given hy the party attaching. (Code Civ. Proc., § 182.) The sheriff is under the duty to “safely keep” the property. (Code Civ. Proc., § 184.) The sheriff is an officer of the court, and subject to the court’s proper orders. Again, if it appear to the court that the interests of the parties will be subserved by a sale of the attached property, the court may, upon determining such fact upon a hearing of both parties, order the property sold as property is sold under execution. (Code Civ. Proc., § 541.)

We will then proceed for a moment to analyze the statute. Turning again to subdivision 1, sections 229, it is observed that the first sort of case in which a receiver may be appointed is in an action by a vendor to vacate a fraudulent purchase of property. This, of course, may be passed without comment. Next, we find that a receiver may be appointed in an action by a creditor to subject any property or fund to his claim. We should be inclined to say that this might be passed without comment, were it not that counsel for the respondent has relied upon it. We therefore examine it a moment. The action here was a simple one of debt. Surely it cannot be contended that a simple action of debt, asking only a straight money judgment, is an action by a creditor to subject property or a fund to his claim. The action is not for such a purpose. It does not seek such relief. There is nothing about such an action which looks to an obtaining of the relief of subjecting a fund or property to the plaintiff’s claim. Nor does the fact that a writ of attachment was issued change the nature of the action from a money demand to one for the relief of subjecting a fund to plaintiff’s claim.

Again, it has been suggested that the following portion of subdivision 1, section 229, is sufficient to grant the power to the district court. The portion reads as follows: “A receiver may be appointed, .... in an action .... between partners, or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of any party whose right to, or interest in, the property or fund, or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured.” But no partners are concerned here, and no other persons jointly owning any property or funds. Omitting these words, the statute, for the purposes and facts of this case, would read: “A receiver may be appointed .... in an action .... between persons jointly interested in any property or fund, on the application of,” etc. Does this portion of the section give authority to appoint a receiver of property attached in a simple money demand action ? We do not think such view should obtain. Is the action between persons jointly interested in any property or fund? It seems not. The action has nothing to do with property of any one, or of any kind. No property is the subject of litigation. The action is upon a debt only, and seeks only a money judgment. The plaintiff and defendant in such an action are not jointly interested in any property or fund, so far as any thing appears in the action. It is true that when the action was commenced a writ of attachment was issued ancillary thereto, and in pursuance to such writ property was seized by the sheriffs, to be by them held to answer any judgment that plaintiff might obtain. Does this ancillary circumstance inject into the action the fact that the action is between parties jointly interested in property or a fund? It does not seem to us that it does. The action not being about property at all, the issuance of an attachment does not change the nature of the litigation, and convert it into an action between persons jointly interested in any property. We think the- section means that the action must be in regard to property in which the parties are jointly interested. The whole context indicates this. The context speaks of “between partners” and “others jointly owning” and “others jointly interested.” It is actions between such people that are being described. We think the section certainly means that the action here described, in which a receiver may be appointed, is one in regard to property or a fund in ■which there is a joint interest of the parties. The only possible construction by which this portion of the section could be made to apply to such an action as the one before us is the holding that the creditor and debtor, plaintiff and defendant, in an action on a money demand, and for a simple money judgment, are “jointly interested” in property which is not the subject of the action, but is confessedly the sole property of the defendant, and in which the plaintiff has no rights whatever except what rights it may be held that he obtains by virtue of the fact that the sheriff has seized said property under writ of attachment; that is to say, it must be held that an attaching creditor has a joint interest, within the contemplation of the statute, with defendant in defendant’s property which has been attached. We do not think that such plaintiff has such joint interest as is contemplated by the statute. We do not think the statute, in its text and context, conveys this meaning. The plaintiff, by attachment, has acquired a right to have the property held by the sheriff awaiting the judgment, but we cannot think that he has such a joint interest in the property as this statute had in Nmw when it spoke of partners and other persons jointly owning or interested in any property. If the legislature had intended to give the power to-appoint a receiver in attachment suits it is such an important matter that it would seem that they would have mentioned it.

The California supreme court said, as to a kindred subjects “If it had been intended to confer the power to appoint an officer of that character [a receiver] in an action at law for the recovery of the possession of real property, it is not credible that the legislature would not have said so in terms, since it was apparent that it was their purpose to specify all cases, whether at law or equity, in which receivers could be appointed.” (Bateman v. Superior Court, 54 Cal. 289.) The court was construing a statute similar to our own. Therefore, upon such analysis as we are able to give subdivision 1 of section 229 of the Code of Civil Procedure, we cannot find therein the jurisdiction to appoint the receiver in this case.

There seems to be nothing in the further portion of the subdivision which is applicable. The rest of the language states on whose application the receiver may be appointed. The section has already stated the kinds of action in which the appointment may be made. These we have considered. Then it states on whose application, and under what circumstances, the appointment may be made in such actions. The appointment may be made “on application of the plaintiff,” or it may be made on the application “ of any party whose right to, or interest in, the property or fund, or the proceeds thereof, is probable.” (See the section, with subdivision 1, quoted fully above.) The statute, in this latter language, is not defining actions in which the receiver may be appointed. That it has done. Now it comes to defining who may make the application, and it says not only the plaintiff, but any party whose right, etc., is probable. If this part of the section which we are now considering does not relate to the first part of the section, and if it does not simply describe the persons who may apply in the sorts of action which have been before set forth; and if this portion is to be cut off from the proceeding; and if it is to stand alone as describing another condition when a receiver may be appointed, then the reading would be about as follows: “A receiver may be appointed in any action on the application of the plaintiff, or of any party whose right, etc., is probable, where it is shown that the property is in danger of material injury,” etc.; that is to say, this construction would give the authority to appoint a receiver in any case where it was shown that there was danger of material injury to property. It may be expedient to have such a statute. It seems that Indiana has one as broad as this. (20 Am. & Eng. Eney. of Law, 59.)

But we do not think that subdivision 1 of section 229 would bear that construction. If such were the meaning of the statute, the word “or” would have been inserted before the word “on,” at the top of page 116 of the Compiled Statutes, at the eighth line of the section. And the section would have read, in effect, that a receiver may be appointed in an action by a vendor to vacate, etc., or by a creditor to subject, etc., or between partners or others jointly interested, etc., “or” (this being the “or” that would have to be inserted) on the application of plaintiff, or of any party, etc., upon the danger of the material injury shown. But the statute does not read in that way. The “or” as written in quotation marks in the above sentence is not in the statute. The section describes the sort of actions in which the receiver may be appointed, with the disjunctive “or” between the different sorts, and then goes on and states who may make the application in such actions, and under what circumstances in such actions. The section closes with the statement that to allow a receiver in the cases enumerated it must appear, furthermore, that there is danger of loss, etc. This clause of the section is introduced by the word “and,” connecting it with the language preceding it, which is the language describing who may make the application in the cases which have been theretofore set forth. The descriptions of the sorts of actions in which the receiver may be appointed are all connected with the word “or,” and not “and.” This last clause of the section speaks of “the property or fund.” The natural construction seems to us to be “the property or fund ” which the section has theretofore mentioned; We do not think it is within the meaning of the section to cut off this last clause, and read it: “A receiver may be appointed in an action ‘where it is shown that the property or fund is in danger of being lost, removed, or materially injured.’ ” Such a clause, so read, would be meaningless, for there would be nothing in it to indicate the nature of the action, or what was “the property or fund” referred to.

We cannot see any other reading of the statute than that which we have above pointed out, and such reading does not include the appointment of a receiver in such a case as the one before us. This does not seem to us to be construing the statute at all. It seems to be nothing further than reading its plain terms.

We are of opinion that this writ of certiorari should be granted, and that the order of the district court in appointing the receiver should be annulled,

Pemberton, C. J., concurs.