Wilson v. Hays

Missouri Court of Appeals

Wilson v. Hays

123 S.W. 540, 139 Mo. App. 513, 1909 Mo. App. LEXIS 517

DecidedDecember 6, 1909

StatusPublished

This text of 123 S.W. 540 (Wilson v. Hays) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wilson v. Hays, 123 S.W. 540, 139 Mo. App. 513, 1909 Mo. App. LEXIS 517 (Mo. Ct. App. 1909).

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Opinion

ELLISON, J. —

This appeal is from an order of court appointing a receiver for certain personal property on the application of the plaintiff.

It appears that plaintiff brought his action against defendants for specific performance of a contract for sale of a tract of farm land; that it was a part of such contract that 'defendants were to retain or rent the land until the first of March, 1910, and to pay plaintiff one [515]*515half the corn and wheat grown on the premises. In that action plaintiff prayed the appointment of a receiver. Afterwards, while that action was pending, and on July 12, 1909, plaintiff filed a formal petition for the appointment of a receiver for the grain so grown upon the premises on the ground that defendants had failed to perform their contract and had threatened and were threatening to convert and waste plaintiff’s part of such grain. Both parties appeared before the judge of the Platte Circuit Court and the matter was continued to July 19th; but after the continuance and before July 19th defendants began preparation to thresh the wheat with the threat that they would make way with or convert it. Thereupon plaintiff, on July 16, applied, in vacation, for, and obtained the receiver the appointment of whom is now contested. The appointment was thus made to meet the emergency of defendants attempting to “waste or convert the wheat,” as found by the court, and to which plaintiff was entitled in kind.

The appointment of a receiver may be made by the court or judge in vacation whenever he may deem it necessary for the purpose of keeping and preserving the property. [State ex rel. v. Loan Assn., 159 Mo. 102; Stark v. Grimes, 88 Mo. App. 409.]

The matter of appointment of a receiver was within the sound discretion of the court, or judge in vacation, and it does not lie with defendants in the circumstances of their attempting to dispose of the wheat in the week’s time intervening between the date when the application was to be heard and the date to which it was continued, by agreement, to say they had no notice. They had due notice and appeared to the application for receivership and agreed to a continuance. The court found that they were proceeding to convert the property before the day on which they agreed the application should be heard. It is not reasonable to suppose that a court, or judge [516]*516in vacation, would be powerless to protect tbe property in sucb an emergency.-

We tbink the petition stated a cause of action upon which the appointment of a receiver might be based, and that the record discloses ample warrant for the rulings of the court.

' Whatever may have been in the case in defendants’ behalf which might have been brought to the trial court’s ■attention by way of motion to revoke the appointment of a receiver, is not before us, since no motion of that character was preserved by a bill of exceptions, and not being so preserved, it is no part of the record and cannot be noticed. [Cantwell v. Lead Co., 199 Mo. 1, 41; Bank v. Bank, 169 Mo. 74.]

A full examination of the record satisfies us that defendants’ appeal is without substantial merit, and hence we affirm the judgment.

All concur.

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ELLISON, J. —

This appeal is from an order of court appointing a receiver for certain personal property on the application of the plaintiff.

It appears that plaintiff brought his action against defendants for specific performance of a contract for sale of a tract of farm land; that it was a part of such contract that 'defendants were to retain or rent the land until the first of March, 1910, and to pay plaintiff one [515]*515half the corn and wheat grown on the premises. In that action plaintiff prayed the appointment of a receiver. Afterwards, while that action was pending, and on July 12, 1909, plaintiff filed a formal petition for the appointment of a receiver for the grain so grown upon the premises on the ground that defendants had failed to perform their contract and had threatened and were threatening to convert and waste plaintiff’s part of such grain. Both parties appeared before the judge of the Platte Circuit Court and the matter was continued to July 19th; but after the continuance and before July 19th defendants began preparation to thresh the wheat with the threat that they would make way with or convert it. Thereupon plaintiff, on July 16, applied, in vacation, for, and obtained the receiver the appointment of whom is now contested. The appointment was thus made to meet the emergency of defendants attempting to “waste or convert the wheat,” as found by the court, and to which plaintiff was entitled in kind.

The appointment of a receiver may be made by the court or judge in vacation whenever he may deem it necessary for the purpose of keeping and preserving the property. [State ex rel. v. Loan Assn., 159 Mo. 102; Stark v. Grimes, 88 Mo. App. 409.]

The matter of appointment of a receiver was within the sound discretion of the court, or judge in vacation, and it does not lie with defendants in the circumstances of their attempting to dispose of the wheat in the week’s time intervening between the date when the application was to be heard and the date to which it was continued, by agreement, to say they had no notice. They had due notice and appeared to the application for receivership and agreed to a continuance. The court found that they were proceeding to convert the property before the day on which they agreed the application should be heard. It is not reasonable to suppose that a court, or judge [516]*516in vacation, would be powerless to protect tbe property in sucb an emergency.-

We tbink the petition stated a cause of action upon which the appointment of a receiver might be based, and that the record discloses ample warrant for the rulings of the court.

' Whatever may have been in the case in defendants’ behalf which might have been brought to the trial court’s ■attention by way of motion to revoke the appointment of a receiver, is not before us, since no motion of that character was preserved by a bill of exceptions, and not being so preserved, it is no part of the record and cannot be noticed. [Cantwell v. Lead Co., 199 Mo. 1, 41; Bank v. Bank, 169 Mo. 74.]

A full examination of the record satisfies us that defendants’ appeal is without substantial merit, and hence we affirm the judgment.

All concur.

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123 S.W. 540, 139 Mo. App. 513, 1909 Mo. App. LEXIS 517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-hays-moctapp-1909.

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