Jacobson v. Landolt

Lvon-, J. The rules of law upon which these appeals must be determined are not difficult, and may be very briefly stated. The appellant, Jacobson, who claims a special lien upon a portion of the copartnership property in the hands of the receiver, has the right to intervene in the partnership action for the purpose of asserting such lien. But inasmuch as the property came into the hands of the receiver before he levied his attachment upon it, in order to successfully assert his claim and lien thereupon it seems necessary that he should obtain a vacation of the order appointing the receiver. TIence he is entitled in some appropriate proceeding to attack the validity of such appointment. But a summary proceeding by motion is not the appropriate method of making such attack. This can only properly be done upon the petition of the party interested, setting forth the facts upon which he relies to obtain a vacation of the appointment. To such a petition the receiver, who is the officer of the cgurt and represents all parties adversely interested, may interpose an answer, and take issue upon any of the facts stated in the petition. The issup thus made is to be determined in the regular course of judicial procedure by a trial thereof and a determination of the material facts involved. The order of March 7, 1888, provides that “all persons who claim to have any liens upon or special rights in any property in the hands of the receiver, and may desire to do so, may present their respective claims to this court by petition duly verified, [146] serving a copy of the petition on the attorneys for the receiver; that the receiver have leave within twenty days to answer the same, and the same may thereupon be heard in this court, or as the court shall direct.” This order gives Jacobson, as well as all others similarly situated, the right to intervene in the partnership action, and to litigate therein any and all questions affecting his right to a paramount lien upon the property attached by him. It is scarcely necessary to add that nothing in the orders appealed from is res adjudícala, upon any of the questions thus put in issue by the petition and answer. Both of the orders appealed from were made after the order of March 7, 1888, and the,y deny the right of Jacobson to intervene. These orders while in force may be, and probably are, a modification of the order of March 7th, operating to except Jacobson from that order and bar his right to intervene in the action. For this reason that part of each of those orders which denies leave to Jacobson to intervene in the partnership action is erroneous. For the reasons above stated, that portion of the order of March 28, 1888, first appealed from, which denies the motion to vacate the order appointing a receiver, was properly denied. That portion of the order of Ma\r 8th, from which the second appeal was taken, which denies .the motion to vacate the order of March 7th, must also be affirmed, because the appellant could not be heard to make the motion before leave was granted him to intervene in the action, and because, in the condition the action then was, the order appears to have been a proper one and regularly made. Our conclusions are therefore that so much of each of the orders appealed from as denies to Jacobson the right to intervene in the partnership action must be reversed, and the residue of each of such orders must be affirmed. Each party must pay his own costs. By the Court.— Ordered accordingly.