Anderson v. Robinson

Opinion by Mr. Chief Justice Eakin.

The pleadings tender but one issue, the necessity for a receiver, and involve the validity of the order appointing the receiver. The title to the property was in Phegley, in trust for the benefit of plaintiffs and himself. Robinson has succeeded to Phegley’s interests, the title remaining in Phegley, and she defends alone.

1. Under the contract by which Phegley secured title to the property, it was his duty to perform the assessment work on the mining claims' for the year 1909, and plaintiffs had a right to demand its performance to protect their interests. Whether that duty shifted to plaintiffs when they took possession of the property in May, 1909, and excluded defendant therefrom, need not now be decided. As suggested in 57 Of. 184 ( 109 Pac. 1118 : 110 Pac. 975 ), if defendants were neglecting that duty, plaintiffs had the right to cause it to be done, or, if prevented by defendants, one of whom held the title as trustee, to have the trustee removed and another one appointed; and the right to accomplish the same result by the appointment of a receiver, as was attempted by this suit, is not questioned. But defendant contends that *233 the court was without power or jurisdiction to make the appointment upon the showing made, and without notice to defendant. The order was not made as an interlocutory order, or provisionally in a suit or action, but was a permanent appointment, with authority to accomplish the whole purpose of the suit. It was the only relief sought, as will be seen from the prayer of the complaint and the portion of the order above set out; and thus plaintiffs obtained the whole relief desired by the suit before the service of summons or other notice to defendants.

2. It may be stated as a general rule that a receiver should not be appointed ex parte, without notice to the parties to be affected thereby, and before they have had an opportunity to be heard in relation to their rights; and even though there is no provision in the statute requiring notice of the application for the appointment of a receiver, under the rules of equity in matters of appointment of receivers, which govern when not inconsistent with the statutes on the subject, such notice should be given. 34 Cyc. 117.

3. There may be exceptions to this rule, such as where the interested party is out of the jurisdiction, or cannot be found, or where delay will jeopardize the delivery of the property, or where it is important that the court should interfere before there is time to give notice. In such cases a temporary appointment should be made until a hearing can be had. 34 Cyc. 121, 122. Plaintiffs do not seriously contest this statement of the law, but urge that defendant has waived the irregularity of the appointment by failure to object. A defendant may be held to have waived any objection to an ex parte appointment by acquiescence therein, by failure to interpose a timely objection thereto, or by consenting to the appointment, or by participating in the proceeding thereafter. 34 Cyc. 162. Defendants have done none of these things.

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4. The complaint is the only showing upon which the appointment was made. The defendant answered within ten days after service of summons. The case was at issue on January 11, 1910, and by consent the case was referred for the taking of testimony on January 18th, and all the testimony on defendants’ part was taken on January 20 and February 1, 1910, although plaintiffs did not complete their testimony until November 30th, so that defendant was guilty of no delay in her resistance to the proceeding; nor did she waive any irregularity in the appointment, and the appointment of a receiver was error. See Salling v. Johnson, 25 Mich. 489 . To the same effect are Cummings v. Steele, 6 Idaho, 666 ( 59 Pac. 15 ); State v. Clancy, 20 Mont. 498 ( 52 Pac. 267 ); State v. Dearing, 184 Mo. 647 ( 84 S. W. 21 ).

5. Secondly, it is contended by defendant that, at all events, there was no occasion for an appointment of a receiver; that plaintiffs did not establish that she had neglected to do the assessment work of 1909, or that she was in default in that regard. It appears that defendant was almost continuously working the mines from February 15, 1908, until May 10, 1909, when plaintiffs took possession and dispossessed her. It is not important whether the assessment work for 1908 was completed or not. Defendant was in possession on January 1, 1909, performing work, and therefore the claims were not subject to re-location; and work performed thereafter would apply on the assessment work for the year 1909.

6. The testimony tends to show that work was being done on each of the three groups of mines by means of hydraulic giants for about four months prior to May, 1909, although each group was not worked continuously, when plaintiffs wrongfully ousted defendant from possession and held it until September 21, 1909. Defendant resumed possession on December 10, 1909, and began *235 work, and when the receiver was appointed she was again ousted from the property.

7, 8. With the evidence before us, it does not satisfactorily appear that the assessment work for the year 1909 had not been fully performed by the • defendant. The testimony of plaintiffs’ witnesses on that issue is not of specific facts, but guesses, estimates, and hearsay, and such estimates are based upon a wrong theory. The value of the work done by hydraulic washing is not determined by the wages of the man who holds the nozzle, but by the result accomplished. The value of the use of the plant, including the water rights, ditches, pipe lines, giants, which contribute more to the' result than the manual labor, must be included. When the appointment of the receiver was made, there was no proof of facts before the court. There was an issue upon which defendant had a right to be heard, and when the evidence was produced at the final trial it failed to sustain the complaint, and upon both grounds the order appointing the receiver was void, and his acts thereunder were unauthorized and void.

“If the court is without jurisdiction to appoint a receiver, the order is void, and may be attacked or disregarded. * * The right to possession in the character of receiver cannot be enforced or defended under it. * * ” 34 Cyc. 168.

The orders of the court approving his acts and allowing and approving the expenditures made, and authorizing him to issue receiver’s certificates therefor, were unauthorized, and were error.

9. Defendant has appealed separately from the order of September 27, 1911 (Abstract, page 26), and the one of June 2, 1911 (Abstract, page 33), and plaintiffs have moved this court to dismiss the two appeals, for the reason that the transcripts were not filed within the time allowed by law. It is unnecessary to consider *236 these motions, for the reason that the orders are intermediate, and are reviewable upon appeal from the final decree, in which decree they are assigned as errors. Section 558, L. O. L.; 2 Cyc. 611; Basche v. Pringle, 21 Or. 24 ( 26 Pac. 863 ); Clay v. Clay, 56 Or. 538, 542 ( 108 Pac. 119 : 109 Pac. 129 ); Sears v. Dunbar, 50 Or. 36, 40 ( 91 Pac. 145 ) ; State v. Portland General Electric Co., 52 Or. 513 ( 95 Pac. 722 : 98 Pac. 160 ).

The decree of the lower court will be reversed and the suit dismissed. Reversed: Suit Dismissed.