Miller v. Oliver

ANGELLOTTI, C. J.

This is an appeal by the plaintiff from an order appointing a receiver

pendente Ute

on the application of defendants. The order was one appointing W. J. Hersom receiver “of the real and personal property mentioned” in the pleadings for the purpose of protecting and caring for the same, and to manage the same as directed by the court. It was provided in the order that the plaintiff and his wife should not be removed from the premises unless so required by a subsequent order, and that plaintiff might be employed, if the receiver so elects, to assist him in such care and protection. The order summarized the purpose as follows: “In other words, the receiver is to protect and substantially preserve

in statu quo,

the property of the parties to this action, but, unless necessary or unless ordered

[408]

by this court, not to interfere with the residence of the plaintiff and his wife on said premises.”

The action was instituted by plaintiff for the purpose of having it adjudged that he was the owner of the real property described in the complaint, that a conveyance thereof made by him to defendant Miller Farm Company on J'une 21, 1907, was made without consideration, and upon its promise and that of defendants Oliver that the premises would be reconveyed to him upon demand, and by reason of undue influence on the part of said Olivers. He asked for a decree declaring him the owner of such property and canceling the deed to the Miller Farm Company. The allegations of the complaint were denied in the answer filed by the three defendants, and in that portion of the answer styled a “further and separate defense herein,” embracing fifty-five pages of the printed transcript, defendants set up many matters upon which they asked, in addition to a judgment that defendant corporation is the absolute and unqualified owner in fee of such real property, for affirmative relief of various kinds, including relief as to certain personal property used in connection with the realty, which was farm property, and also in the matter of determining the relative rights of defendant J. E. Oliver and plaintiff in the shares of stock of the Miller Farm Company. To prevent interference pending the litigation by plaintiff and his wife with the real and personal property alleged to belong to the corporation, both a receiver and an injunction were asked. It was upon these allegations and certain affidavits, which add nothing that is material to the question before us, that the order appointing the receiver was made.