Cessna v. Otho Development & Power Co. , 35 S.D. 557 ( 1915 )

McCOY, P. J.

This action was instituted by the service of summons and complaint on all the defendants to foreclose statutory miner’s liens. From the complaint it substantially appears that defendant Otho Development & Power Company is a corporation existing- under the laws of this state; that said Otho Development & Power Company' is the owner of certain mines and mining’ claims situated in Pennington county, together with mill, hoist, and all buildings and machinery and improvements and appurtenances in connection therewith; that plaintiff is a laborer and miner by trade, and that he entered into a contract with the Otho Development & Power Company to do and perform certain work and labor as a miner, in and upon said mines and mining claims, and that pursuant to said contract plaintiff, between the ist day of August, 1914, and the 12th day of November, 1914, did and perform1 work and labor as a miner in and upon said mines and mining- claims, which at the agreed price came to $384, no part of which has ever been paid excepting $75 ; that on the 17th day of December, 19x4, plaintiff, for the purpose of securing- and perfecting- a miner’si line for such moneys due him on account of said work and labor xxpon said mines and mining claims, together with the mill, hoist, and buildings and machinery thereon, under the provisions of chapter 51, Laws of 1909, and the acts amendatory thereof, filed, 'in the office of the clerk of the circuit court for said county, an affidavit and notice of his claim of lien, duly sworn to1 and verified; that no proceedings at law or otherwise have been instituted to- collect said claim; and that the defendants have, or claim to have, some interest in or claim upon said property, but which claims or interests are inferior and junior to the lien of plaintiff. Plaintiff pra}red judgment and decree foreclosing said miner’s lien upon said property, and barring defendants from any right, title, or interest therein. On the 18th' day of December, 1914, the plaintiff and the defendants Robertson, Malgreen, and Stevens, as all the similar lien owners, united in a motion for the appointment of a receiver, reciting that said motion was based on section 8 of chapter 51, Laws of 1909, and requested that one C. M. Cessna be appointed such receiver of all the property covered by said liens; and on said díate the trial court by order granted said motion, and appointed said C. M. Cessna receiver to take possession of said mines and mining claims and said property of said Otho Development & Power 'Company. No notice was given to-said Otho Development & Power Company of the application and' motion for the appointment of such receiver; the said order of' appointment being what is termed an ex parte order. Thereafter, on the 9th day of January, 1915, the defendant Otho Development & Power Company moved the court to cancel and set aside the said order appointing a receiver, upon substantially the following ground's: (1) That the order is not based upon any affidavit other than the verified complaint, the facts stated in which are not sufficient to show any necessity for or to. authorize the court to make the order appointing a receiver; (2) that the court had no jurisditcion to make said order without notice to said defendant. This motion to cancel and set aside the order appointing- the receiver was denied, and said defendant duly excepted. On the nth day of February, 1915, the defendant Otho Development & Power Company duly appealed from the order of December 18, 1914, appointing said receiver, and now urges that the court erred in making such order, on the ground that there were no facts before the court tending to show any necessity for or authority, to appoint a receiver, and on the ground that such order was made ex parte and without notice to said defendant.

[1] Respondent moved to dismiss said appeal on the grounds, among others, that the order appealed from is not an appealable order, and that the receiver was not made a party to the appeal. It is the contention of respondent that .an ex parte order appointing a receiver is not an appealable order, and that the receiver was a necessary party to the appeal. We are of the view that such contentions are not tenable. The appointment of a receiver is a provisional remedy. Code Civ. Proc. § 462; Joseph Dry Goods Co. v. Hecht, 120 Fed. 760, 57 C. C. A. 64; Title Ins. Co. v. Trust Co., 159 Cal. 484, 114 Pac. 838; Colwell v. Bank, 119 N. Y. 408, 23 N. E. 739; De la Montanya v. De la Montanya, 112 Cal. 101, 44 Pac. 345, 32 L. R. A. 82, 53 Am. St., Rep. 165; Anderson v. Mathews, 8 Wyo. 307, 57 Pac. 156; Anderson on Receivers, §§ 126, 313, 316; Smith on Receivers, 7071; High on Receivers, § 830; 17 Ency. Pl. & Pr. 868, 870, 877.

[2-5] The contention is made by respondent that it was not necessary, under section 8, c. 51, Laws of 1909, to make any showing' whatever as to the necessity for a receiver, as the only condition precedent to such appointment prescribed 'by said act is that a suit had been commenced to foreclose such miner’s liens. We are of the view that this contention is not well taken. The effect of the .appointment of a receiver to take possession of property is to take from the owner the right of possession and control of his own property and place it in the hands and under the control of a stranger, and any státu'te which would permit such act without a showing justifying it is fundamentally and clearly void. In St. Germain Ditch Co. v. Hawthorne Ditch Co., 32 S. D. 260, 143 N. W. 124, in relation to section 16, c. 180, Laws of 1907, it ‘was held that a statute which provided that upon the mere commencing and filing of a suit the court might order hydrographic surveys to be made, and that the parties owning the lands over which such surveys were made should pay the costs thereof, was void and not due process of law; that simply the filing of such suit was not sufficient authority to deprive the owners of property rights. The same principle is involved in the case present. We are of the view that the provisions of this act, chapter 51, Laws of 1909., so far as it relates to the appointment of receivers, should be construed in the light of other existing laws in relation to. receivers; and, before the court would be authorized to. appoint a receiver in such an action, a showing upon notice should be made, sufficient to justify and warrant the appointment of a receiver. It is urged by appellant that chapter 51, Laws of 1909, was repealed by chapter 263, Laws of 1913, the contention being that said chapter 263 is a general law upon the subject of labor and material liens for improvements upon real estate, and inherently includes the entire subject-matter of said chapter 51. On the other hand, respondent contends that the title of chapter 263, under section 21, art. 3, Const., is not sufficient to carry legislation that would repeal chapter 51. The provisions of chapter 263 are inherently in conflict with the provisions of chapter 51, and cover the same subject-matter. The title of chapter 263 is:

“An act entitled, An act creating and defining liens for labor and material rendered and furnished in the improvement of real estate, and providing a method for the enforcement thereof.”

This is a broad and comprehensive general title, as distinguished from a specific and itemized or restricted title. If this title by its language and terms had undertaken to specify and name what classes of specific liens were included therein, and had specifically named certain classes as included, and had left out and not named certain classes of liens, and miner’s liens were among the classes not named, then clearly respondent’s contention would be well taken; but the framers of this act (chapter 263) have adopted a general title, and the rule seems to be that courts are very liberal in their construction of such general titles, and all legislation, which by any fair and reasonable inference or intendment can be included therein, should be held to be within such title, and all reasonable doubts must be construed in favor of the constitutionality of the statute. The title of an act should never be construed or required to be an index .of the contents of an act. This question was considered by this court in State, v. McPherson, 30 S. D. 547, 139 N. W. 368, and in Wilson v. Surety Co., 31 S. D. 175, 140 N. W. 263. If miners’ liens for labor or materials furnished are not included in the title of said chapter 263, neither is the lien of a carpenter, lumberman, or any other sort of mechanic’s lien; for the same reason and logic urged by respondent as to miners’ liens would also, with equal force, apply to and exclude mechanics’ and lumber dealers’ liens, or any'other class of liens. None of them are specifically mentioned in this title, but the title is broad enough in its general language to include them all. This title included all liens for labor and materials rendered and furnished in the improvement of real estate. Real estate includes mines and mining claims. We are of the view, therefore, that chapter 51 was repealed by chapter 263.

The order appealed from is reversed and set aside.