Fischer v. Superior Court

Garoutte, J. During the pendency of an action entitled Behlow et al. v. Fischer et al., one Lane was appointed receiver to take possession of and manage certain mining property pending the result of the litigation. Subsequently a judgment was rendered for plaintiffs in said action, in which judgment said Lane was re-appointed receiver, with full power and authority to manage, conduct, and carry on this mining property. The present proceeding is an application for a writ of prohibition, commanding respondents to desist from acting under said order. The application for the writ and the order to show cause were made prior to the rendition of the aforesaid judgment, but that judgment includes the authority under which the receiver is now acting, and for that reason we shall address ourselves to the legal sufficiency of that authority, although the [71] jurisdictional question presented is probably the same under either order, and the argument of counsel so seem to concede. Petitioner’s position, as stated in his reply brief, is that the “ superior court acted without jurisdiction in wresting the possession of the mines from the corporation, which was the undisputed owner of them, and placing a receiver in charge of them and carrying on the business of the corporation.” The case of Behlow v. Fischer is now in this court upon an appeal from the very judgment in which the order appointing the receiver, and which order we are now considering, is found; and that nothing may be said in this opinion which might interfere to any degree with the full consideration of the appeal upon the merits when it is finally submitted, we feel constrained to confine the examination at hand within narrow limits. The action of Behlow v. Fischer may fairly be said to be a suit in equity for the dissolution of a copartnership, for an accounting and for the setting aside of certain transfers of stock on the ground of fraud practiced by the alleged copartner, Fischer. A corporation known as the Consolidated Golden Gate and Sulphuret and Developing Company was joined as codefendant, it appearing that the title to the property over which the receiver was placed in charge stood in the name of said corporation. It will not be necessary to enter into a discussion of the principles and authorities relied upon to sustain the proposition that a court of equity cannot appoint a receiver to take possession of the property of a corporation pending litigation, for petitioner’s ease fails before it reaches that position. The complaint charged that Behlow, Fischer, and others were copartners, and as such owned and worked the mining property mentioned in this litigation; that said partnership has not been dissolved, but still exists; that said copartners, with the object and purpose of carrying on the business of said copartnership by said corporation, under a corporate name, organized the corporation defendant heretofore referred to. It was further agreed as to the parties who should hold the oEces and conduct the various business affairs of said copartnership; that the said agreement was carried out and the copartners transferred by deed, the mining property here involved to the corpo [72] ration for the purpose of. carrying out the said agreement; that said corporation is merely a nominal corporation aud was organized by said copartnership merely for the purpose of carrying on its business, and is not an independent corporation. Upon issue joined the trial court found “that said so-called corporation has ever since its organization and incorporation been a mere name and agent of said copartnership; that it was not the owner of said mining property, aud that said partnership is the owner and entitled to the possession and management of said property.” The foregoing findings come fairly within the allegations of the complaint, and squarely contradict the theory of petitioner that this mining property was the property of the defendant corporation. As indicated by the quotation from petitioner’s brief, he rests liis application for relief upon the theory that the corporation is the owner of the property; but he cannot be allowed the benefit of any such assumption, for the adjudication of the court is directly to the contrary, and that adjudication is authorized by the pleading. From some portions of the complaint it may appear inferentially that the corporation was the owner of the property in dispute, but the allegations heretofore quoted indicate a contrary view, and in this proceeding the complaint will be deemed sufficient if any material can be found therein which will furnish support for the findings and judgment bearing upon the question of the ownership. The court finds this property to be the property of the partnership, and that said corporation was a mere name and agent of said partnership. If a state of facts could ever arise where a corporation was a corporation in name only, and where property standing in its name as grantee was in truth aud in fact the property of another, then, for the purposes of this investigation, we assume such state of facts to be present in this case. The existence of such conditions is not impossible, aud assuming them to exist, we have a copartnership the actual owner of a large amount of property, the title to which stands in the name of another, that person 'possessing no interest whatever in the property. A dissolution of the partnership and an accounting is asked for. Under such circumstances this property is assets of the copartnership, and the [73] court is authorized to appoint a receiver to take charge of the same. For the foregoing reasons let the application for the writ be denied. McFarland, J., Paterson, J., and Harrison, J., concurred. De Haven, J., and Beatty, C. J., dissented. Rehearing denied. Beatty, C. J., dissented from the order denying a rehearing.