Wellman v. Harker

3 Or. 253

• Court: Multnomah County Circuit Court, Oregon
• Decided: November 15, 1870
• Status: Published

Opinion

Upton, J.,

announced the following decision :

It does not appear from tbe complaint whether tbe plaintiffs have made any effort to have tbe demands due to tbe firm of Barker & Co. collected; nor that tbe defendant has neglected any duty in that respect. There is therefore no foundation laid for appointing a receiver in order to expedite tbe collections. To justify appointing a receiver or granting an injunction, because of tbe funds charged to be in tbe defendant’s bands, it should appear tbat there is danger tbat tbe money will be ultimately lost to tbe plaintiffs. It is not alleged tbat tbe defendant is insolvent, nor does it appear affirmatively by tbe complaint tbat there is any danger of ultimate loss to tbe plaintiff. Tbe answer denies tbat tbe defendant “bas applied to bis own use any sums drawn out of said firm,” and alleges tbat the crediting the other firms mentioned, was done with tbe knowledge and consent of tbe plaintiffs.

I think there is not good reason shown for an Injunction or for the appointment oí a receiver. Where tbe motion is submitted on complaint and answer, and tbe answer denies all thé equities of the bill, an injunction should not be granted.'

Tbe answer I think denies all tbe equities attempted to be set up in tbe complaint, unless it be tbe charge that tbe defendant bad allowed certain firms in which be is interested to become indebted to tbe firm of Harker & Co. In regard to that matter, it does- not appear that those firms are insolvent, nor that this defendant has been requested to collect tbe money from them; and tbe answer avers that tbe credit was given to them with tbe plaintiffs’ approval. I do not think a sufficient cause is shown, either for appointing a receiver or granting an injunction.