Oudin & Bergman Fire Clay Mining & Manufacturing Co. v. Conlan

Fullerton, J.

Tbe appellant, a corporation, began an action against tbe respondents seeking to have them enjoined from acting as its trustees, alleging that they bad unlawfully and without right assumed to act as such, and bad attempted to oust from its management tbe only person lawfully having that authority. Tbe respondents for answer denied many of the allegations of tbe complaint, and filed a cross-complaint, in which they asked that tbe affairs of tbe corporation be wound up, that its property be sold, and that tbe proceeds of tbe sale be divided among those lawfully entitled to tbe same, and that tbe court appoint a receiver for that purpose. On filing their answer they moved for tbe appointment of a receiver pending tbe action. This motion was denied by tbe judge before whom it was first beard, but later on tbe application was renewed before another judge of the same court, who appointed a receiver and directed him to- take possession, charge, and control of all tbe property of tbe corporation, pending tbe final determination of tbe action between tbe parties. Tbe appellant excepted to tbe order, and appealed therefrom, giving a bond superseding the receiver pending the appeal.

The record sets forth the grievances of the parties at length, but we shall not discuss tbe evidence, as the¹ cause is pending for trial in the court below, and we do nolti care to prejudice a trial of the merits. Suffice it to say, therefore, that we think there was no abuse of discretion in appointing the receiver. As, however, the appellant hag superseded the receiver, and given a bond in the sum of five thousand dollars, conditioned that it will satisfy and perform any order this court may render or make on this appeal, the remittitur will not go to reinstate the receiver, but will direct that the bond stand in lieu of the receiver, and that the possession of the property remain with its present custodians until the final determination of the merits of the case by the court below; the respondents to have recourse upon such bond for any losses they may sustain, or may have sustained by reason of the supersedeas, or the order of this court extending the same. Neither party shall recover costs on this appeal.

Mount, 'O. J., Hadley, and Dunbar, JJ., concur. Rudkin, Root, and Crow, JJ., took no part.