Prouty v. Hallowell

Collins, J. Upon the affidavit and petition duly made by the attorney for the plaintiff in the above-entitled action, (which was then awaiting trial,) the court issued its order that defendant show cause, at a specified time and place, why a receiver should not be appointed under the provisions of the insolvency laws of this state. Both parties filed other affidavits bearing upon the matter, and, after a number of continuances, a final hearing was had, July 2, 1892. The court thereafter made and filed findings of fact and conclusions of law to the effect that defendants were entitled to have the order vacated and discharged. It also vacated and discharged said order and all subsequent proceedings. Plaintiff’s counsel appeal directly from the order, and the record presented to us consists, according to the certificate of the clerk of the court below, of the before-mentioned affidavits, the order to show cause, and the findings or decision of the court. There is no certificate of the judge before whom the proceedings were had, and who passed upon the' petition, nor has a case or a bill of exceptions been settled, so far as. we are informed. Treating the petition as setting forth a proper [491] case for the appointment of a receiver under the provisions of Laws 1889, ch. 30, § 2, we are unable to see how, on the record, the alleged action of the district judge in refusing to take testimony offered by the petitioner at the hearing can be reviewed. As preliminary to the findings of fact, the judge stated that the counsel offered to support the petition with proof, and objected to a trial of the matters involved upon affidavits; but this is insufficient to bring the question before us. This was a fact occurring at the trial, not a matter of record, and, although stated in the findings or decision, is not reviewable on appeal. What took place at the trial cannot be made to appear by the findings of fact or by the decision. D. M. Osborne & Co. v. Williams, 39 Minn. 353, (40 N. W. Rep. 165,) and eases cited. Even if this were not so, the assignments of error relative to the right of the petitioner to introduce testimony in support of his petition could not properly be considered here, because it nowhere appears that the court was called upon or made any ruling whatsoever on the offer or the objection. Again, it elsewhere appears in the decision or findings that the latter were made upon the affidavits presented and read by the parties, “and from the admissions then made in open court.” If, from these admissions, the court was as fully informed of the facts as it would have been had oral or documentary evidence been submitted, — and in the absence of any showing to the contrary we cannot presume that it was not, — there was no mistrial of the matters alleged in the petition. We have no doubt that on the order to show cause, which practically amounted to nothing more than a “short notice,” the court should have tried the case on its merits, receiving such evidence as was pertinent, unless waived or rendered unnecessary by the acts or admissions of the parties. The rule of court relative to the hearing of orders to show cause on affidavits, solely, has no application in the trial or hearing of a petition for the appointment of a receiver under the insolvency laws, no matter how the alleged insolvent may be brought before the court. Order affirmed. Vanderburgh, J., absent. (Opinion published 55 N. W. Rep. 623.) Application for reargument denied June 30, 1893.