Manker v. Phoenix Loan Ass'n

Sherwin, J.—

The evidence in these cases was not pi*e-served, and we have nothing before us but the pleadings.and decrees. The defendants plead, that they axe a building and loan association authorized to transact business in this State, and that the plaintiffs were members of the association and stockholders therein, and as such borrowed the money upon which the payments, stated were made, and that the rate of interest paid was not usurious. There was a counterclaim in each case, asking the foreclosure of the mortgage given to the association. It was decreed in each cáse that the defendant association was not in fact á building and loan association, and was not authorized to do- business in this State as such, that the indebtedness due the association had been paid, and that the mortgages be canceled. There is nothing before us indicating that the association has been dissolved, or that it has ceased to exercise its corporate functions; the judgments against the association should therefore stand.

*343

1. leave to sue: íefenseí'011’

*342 The real controversy in the cases as they now stand arises *343 over the contention of the receivers that the plaintiffs had never been given authority to sue them, and that leave to sue is a jurisdictional fact which-must be alleged and proved. There is no question in either case as to the fact that the parties named as receivers were receivers of the association. The appellees concede it to be the general rule that, before suit is brought against a receiver, leave should be obtained from the court by which he was appointed, 'and that if such leave is not obtained, and the question is raised in the trial court, it will defeat its jurisdiction. This séems to be considered the rule in the United States courts, as announced in Barton v. Barbour, 104 U. S. 126 ( 26 L. Ed. 672 ). But we doubt if that ease goes to the length of holding that there is a want of jurisdiction in all such cases. Speaking of the contention that want' of leave to bring suit did not take away the jurisdiction of the court in which it was brought, it is said: “ Our decision upon this question will be limited to -the facts of this case, which are, that the receiver was appointed by the court of the State of Virginia, and'the property in course of ádministratioh was in thát State; the suit was brought’ in a court of the-District of Columbia, a foreign jurisdiction; and the cause of action was ■an injury received by plaintiff in the State of Virginia by reason of the negligence of the defendant while carrying on the business of a railroad .under the orders of the court by which he was appointed. * * * Upon these facts we are of opinion that the Supreme Court of the District of Columbia had no .jurisdiction to entertain the suit.” ’ The decision was limited- to the particular facts of that case; and, if construed as broadly as contended, states a rule.-at variance with the, one announced by this court and by many other courts. In Allen v. The Iowa Central Railroad of Iowa, 42 Iowa, 683 , we held that the failure to obtain leave to sue in such cases was not a bar to the jurisdiction of the court of law, “ and no defense to an otherwise legal- action on trial.” To the same effect axe Kinney v. Crocker, 18 Wis. 74 ; Paige v. Smith, 99 *344 Mass. 395 ; Hills v. Parker, 111 Mass. 508 ( 15 Am. Rep. 63 ); Tobias v. Tobias, 51 Ohio St. 519 (38 N. E. Rep. 317); 23 Am. & Eng. Enc. 1125, and notes.

s. Voluntary «toppei012' But if this were not the established rule in this State, it is clear that when a receiver has appeared and defended, and, as in this case, has invoked the affirmative judgment of the court, he cannot, after an adverse decision, question the.jurisdiction to which he has voluntarily-submitted or himself invoked. Sterritt v. Robinson, 17 Iowa, 61 ; Cooley v. Smith, 17 Iowa, 99 ; Elkhart Car Works v. Ellis, 113 Ind. 215 (15 N. E. Rep. 249); Mulcahey v. Strauss, 151 Ill. 70 (37 N. E. Rep. 702). Moreover, when the receivers voluntarily appeared and submitted to the jurisdiction of the court, it will be presumed that they, were authorized to defend, and such presumption will obtain until the contrary is affirmatively shown. -The presumption is that a general receiver has authority to sue, and, when the receivers in these cases filed petitions asking the foreclosure of the mortgages given to the association, it was an invitation to the court to settle all differences between themselves, as receivers, and the plaintiffs, growing out of the transactions connected therewith.

The judgment is therefore affirmed.