Stephens v. Augusta Telephone & Electric Co.

Fish, P. J.

(After stating the foregoing facts.) It is a well-established rule, that it rests in the sound judicial discretion of the court, administering assets through its receiver, whether ■it will permit an independent action to be brought against the receiver, or compel the applicant to intervene in the suit in which the receiver was appointed; and that a refusal to grant leave to bring such an independent action will, on review, be upheld, unless it appears that there has been a manifest abuse of such discretion. High on Receivers, 254 b. In Meeker v. Sprague, 5 Wash. 242, it was held: “ Where a court has, in a suit in equity, regularly acquired full jurisdiction, not only of t.he property of an insolvent corporation, but also of all the parties- interests therein, and has appointed a receiver for the corporation, the refusal of the court to allow a mortgagee of the corporation to institute foreclosure proceedings in a separate suit against the receiver is not an abuse of the discretion vested in the court, although the mortgagee may allege that the property upon which he has a first lien will be charged with a greater proportion of the expenses of the receivership than would be just, and that by the terms of a deed given by the corporation to the receiver of all its property there seems to be a preference in favor of certain lien claims as against the claim of the mortgagee.” So it was held in Mechanics’ National Bank v. Landauer, 68 Wis. 44, that if the relief sought can be obtained by intervention in the action in which the receiver was appointed, it is no abuse of discretion to refuse to grant leave to bring an independent suit. In this connection, see In re Herbert, 63 Hun, 247; Blake v. Bank, 12 Wash. 619; Patrick v. Eells, 30 Kan. 680; Citizens’ Commercial Bank v. Bay, 110 Mich. 633; Fox River Paper Co. v. Western Envelope Co., 109 Ill. App. 393. We see no reason why petitioners in the present case can not, by intervention in the original action, as well secure all the relief sought as they could by bringing an independent suit. The court, in its order refusing .leave for an independent action, states that the realty in question includes the principal office and operating machinery of the business, which the receiver was conducting, and it can readily be imagined how disastrous to the business or plant of a telephone company as a whole, and how destructive to the interests of the other creditors, it might prove to permit the building containing the office and machinery of such company to be separately sold. We are very clear that there was no abuse of discretion in the present case.

Judgment affirmedv

All the Justices concur, except Lamar, J., disqualified.