Corliss v. Clinton Circuit Judge

Brooke, J. {after stating the facts). The first contention of counsel for plaintiffs is based upon the assertion that the receiver should not be appointed pending a decision upon the demurrer (motion to dismiss), putting in issue the right to file the bill. This point is, we think, without force inasmuch as an order was made denying the motion to dismiss at the time the order for the appointment of the receiver was made. The principal contention is that the court was without authority to appoint a receiver prior to a full hearing and a final decree. Many authorities are cited in support of this proposition, including Wagar v. Stone, 36 Mich. 364; Union Trust Co. v. Electric Co., 152 Mich. 568, and Sanford v. Newell, 204 Mich. 91, Reference is made likewise to the statute (8 Comp. Laws 1915, § 13221). It should, we think, be noted that the receiver in the case at bar is not appointed primarily for the purpose of acquiring possession of the property and income thereof, but in order to preserve the property and avert danger of a ruinous loss, not alone to plaintiffs but to the other holders of the purchase money notes. We are of the opinion that the statute cited does not prevent the circuit court, in chancery, from exercising a sound discretion under such circumstances. Ralph v. Shiawassee Circuit Judge, 100 Mich. 164; Union Street-Railway Co. v. City of Saginaw, 115 Mich. 300; Union Trust Co. v. Electric Co., supra; Webber v. Genesee Circuit Judge, 184 Mich. 112; Millen v. Potter, 201 Mich. 1. We are of the opin [483] ion that the true rule was announced by Mr. Justice Steere in the case of Sanford v. Newell, supra, where it is said: “In that connection, however, it may be added that while not questioning the generally recognized broad power of equity courts in rare cases, of special emergency, where imminent danger of loss of the corpus of the litigation or irreparable injury is clearly shown, to interpose a receiver against the possession of real estate held under color of title, this court has consistently emphasized that the power of dispossessing a defendant by receivership pendente lite should be exercised with extreme caution in all cases, and adhered to the wide distinction between disturbing by receivership the peaceable possession of real estate at the instance of a party out of possession not in privity with the defendant in possession under claim of right, and cases where such relief is asked for the conservation pendente lite of claimed personal property involved in litigation.” It is difficult to imagine a set of facts more strongly appealing to the discretion of a circuit judge than that presented by the case at bar. The testimony clearly shows without denial, although the plaintiffs were represented in court at the time of the hearing, that if the various plants involved in the litigation were permitted to remain closed for any considerable length of time the loss would amount to at least 50% of their value as going concerns and that the remaining value would be insufficient to answer the claims of the plaintiff and the other holders of the purchase money notes. We are of the opinion that the defendant wisely exercised his discretion in the appointment of a receiver in order that the plants might be kept in operation and the property preserved. The writ is denied. Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and. Sharpe, JJ., concurred.