Oehme v. Rucklehaus

The opinion of the court was delivered by Van Syckel, J. The question in this case arises upon an application to this court to appoint a receiver to take charge of the rents of lands pending an action of ejectment. The motion is based upon the two hundred and eighty-sixth section of the Practice act (Rev., p. 893), which provides that in any action in which the right to real estate, or to goods and chattels is in controversy, the court or any judge thereof, may make an order for the protection of the property in controversy from waste, destruction, or removal beyond the jurisdiction of the court, upon satisfactory proof being made of the necessity for such order, and to enforce such order by an attachment for contempt- [85] The words of this statute which apply to real estate are those which authorize its protection from waste or destruction. The words “ removal beyond the jurisdiction of the court ” cannot apply to land. No authority has been cited, and none is known to the court, which holds that the appropriation of the rents of real estate is within the meaning of the words “ waste or destruction of real estate.” The law courts exercised the right to prohibit waste in ejectment suits, before the passage of this statute, but the right of a law court to take charge of the real estate in controversy, through the intervention of a receiver, has never been recognized in our practice. It would, of necessity, imply the right to exercise equitable powers, which do not inhere in the common law courts, and which, in my judgment, the legislation referred to has not bestowed. The motion must be denied, but without costs.