Pitts v. New Mammoth Gold Mining Co. , 23 Utah 623 ( 1901 )

IJpon the statement of the case as above,

Baetch, J.,

delivered the opinion of the court.

The principal question presented on this appeal relates to the appointment of the receiver. The appellants contend that the appointment was made in an action at law, and was therefore improper and illegal. It is evident from the record that this contention can' not avail to disturb the judgment in this case. What may have been the character of the action in which the receiver was appointed, or whether the appointment, upon proper proceedings instituted at the proper tune, could have been set aside as unwarranted, need not, under the circumstances disclosed, be determined. The record shows that the defendant company was insolvent and unable to meet its obligations, consented to the appointment, and was represented in court when the same was made; that thereafter, by consent of all the parties, that action was consolidated with a number of other suits which had been brought against the company, including the one in which the appellants were parties; that some of the actions so consolidated were purely equitable actions; that the corporate property was placed in the- hands of such receiver, who, after the consolidation, represented, without objection, all the parties to the controversy; and that, no objection thereto appearing, the causes so united were tried under one title, as one action. So far as appears from the record, no objection was ever made to the appointment of the receiver, or to any of the proceedings until after decree and judgment. Under such circumstances as are shown in this record, the appellants can not now, after judgment, be heard to complain that the receiver was -improperly appointed. Such an objection, to be of avail, must be made in apt time. An objector can not thus participate in proceedings to wind up the affairs of an insolvent concern, permit the receiver to manage and dispose of the corporate property under the direction of the court, without objection, and then, after final decree, when he has failed to secure all that he expected, question the appointment, and put in jeopardy the rights of others. The application for the appointment of a receiver is 'addressed to the sound discretion of the court, and any objection to the exercise of the discretion must be made at a proper time. As a general rule, such an appointment will be made on application therefor in any case where the interests of the parties appear to require it. Smith, Rec., secs. 22, 225, 228; 20 Am. and Eng. Enc. Law, 269-271; Battershall v. Davis, 31 Barb. 323; Crane v. McCoy, 1 Bond, 422, Fed. Cas. No. 3354; Verplank v. Caines, 1 Johns. Ch. 57; Stevens v. Improvement Co., 14 Utah 232, 47 Pac. 81; Ex parte Walker, 25 Ala. 81; Cortelyeu v. Hathaway, 64 Am. Dec. 482; Palen v. Bushnell (Sup.), 13 N. Y. Supp. 785. We are clearly of the opinion that, under the facts and circumstances of this case, the appoint-, ment of the receiver can not be resorted to as a means to disturb the judgment. Nor do we think the court committed reversible error in the appointment of the referee, or in awarding compensation to the receiver, referee, and attorneys for their services. We find no reversible error in the record. The judgment is affirmed, with costs.

Miner, 0. J., and Baskin, J., concur.