Lee v. Stevens

SULLIVAN, J. This is an original proceeding in this court to obtain a writ of prohibition to restrain and prohibit the district court of the sixth judicial district and the judge thereof from further proceedings under an order and citation for contempt of court issued out of said court, against Charles F. Lee, Julia A. Lee, Conrad Miller, Lorenzo Hammer and O. M. Hall. The following facts appear from the record: Said citation for contempt was issued in the case of W. A. Lee et al. against Charles F. Lee. It is stated in the citation, in substance, that one C. S. Beebe was duly appointed receiver in said cause, and as such receiver had in his possession certain personal property, and that the plaintiffs herein conspired together and took from the receiver said property. It appears that the order for the return of the property has been carried into effect by the return of the property to the receiver from whom it was taken, and the contempt proceedings were stayed by the issuing of the alternative writ in the present case. The ground upon which the plaintiffs are seeking this peremptory writ is that the order of the court in appointing said receiver was made without jurisdiction and therefore void. [672] It is contended that the court had no jurisdiction to appoint said receiver for the following reasons: First, that the record shows said receiver was appointed ex parte and without notice to Charles F. Lee, who was defendant in said action in which the receiver was appointed, and that no undertaking on behalf of the defendant was required of the plaintiffs or given by them prior to the appointment of said receiver; second, that the allegations of the complaint are not sufficient to warrant the appointment of a receiver ex parte; third, that the material allegations of the complaint which were considered by the court in appointing .said receiver are made on information and belief. It appears from the allegations of the complaint, under which a receiver was appointed, that the plaintiffs are the owners of certain lands, livestock and farming implements that were used in farming said land; that they leased said land and personal property to the defendant, one of the plaintiffs in this action, and that in utter disregard of the terms of said lease the defendant had disposed of certain personal property from said ranch and had failed and neglected to comply with the terms of said lease; that the defendant had already sold several hundred dollars’ worth of grain from said premises, and refused to account to the plaintiffs for their share of the same, and that the defendant threatened and was about to convert said personal property to his own use, to the great and irreparable injury of the plaintiffs; that the defendant was insolvent and unable to respond in damages to any amount. It is first contended that under the provisions of see. 4331, Rev. Codes, a receiver cannot be appointed ex parte unless the judge or court requires from the applicant an undertaking, with sufficient sureties to the effect that the applicant will pay to the defendant all damages he may sustain by reason of the appointment of such receiver. Said section is as follows “No party, or attorney, or person interested in an action can be appointed receiver therein, without the written consent of the parties filed with the clerk. If a receiver be appointed [673] upon an ex parte application, the court, before making the order, may require from the applicant an undertaking, with sufficient sureties, in an amount to be fixed by the court, to the effect that the applicant will pay to the defendant all damages he may sustain by reason of the appointment of such receiver and the entry by him upon his duties, in case the applicant shall have procured such appointment wrongfully, maliciously, or without sufficient cause; and the court may, in its discretion, at any time after said appointment, require an additional undertaking.” It will be observed from the provisions of said section that “the court, before making the order, may require from the applicant an undertaking.” It is contended by counsel for the plaintiffs that the word “may,” as used in that section, means “must,” and that the court had no jurisdiction to appoint a receiver until he entered an order requiring the applicant to- give an undertaking as provided by said section. The question is directly presented whether the word “may” as there used means “must.” The legislature, from the wording of said section, evidently intended to leave the matter to the legal discretion of the court as to whether an undertaking should be required from the applicant or petitioner for a receiver, and under the facts alleged in the complaint we do not think the court abused its discretion in not requiring an undertaking from the applicant or plaintiff in that action. The alternative writ must be quashed and this proceeding dismissed, and it is so ordered, with costs in favor of defendant. Stewart, C. J., concurs.