Copper Hill Mining Co. v. Spencer

By the Court, Sawyer, J. This action was brought on the 10th of July, 1862, to recover possession of a copper mine. On the 7th of August, the plaintiff filed an affidavit stating that “ said defendants have taken from the copper mine in dispute some twenty or .twenty-five tons of copper ore, and threaten to dispose of the same; and if a receiver is not immediately appointed, such threat will be carried into execution, and the said copper ore be lost to these plaintiffs.” On the same day, on application of plaintiff, a receiver was appointed, and so far as shown by the record, without notice to defendants. The cause was tried in January. On the 26th of that month, at the close of the plaintiff’s testimony, the Court—being of opinion that plaintiff failed to show title—granted a nonsuit on motion of defendants. The defendants then moved that the order of August 7th, appointing a receiver, be vacated; and the motion, after-argument, was taken under advisement. Afterwards, within the time prescribed by law, the plaintiff moved to set aside the nonsuit, and for a new trial. On the 30th of March, while the motion for a new trial was still undetermined, the Court entered an order vacating the appointment of the receiver, and from this order the present appeal is taken.

It is insisted that the pendency of a motion for a new trial, proprio vigore, stayed all proceedings, and that it was error to vacate the order appointing a receiver, pending the motion. Admitting that the proceedings were stayed generally by the motion, it does not follow that the Court could not vacate the order.

[16]The exercise of the power of appointing a receiver rests very much in the sound discretion of the Court, “ to be governed by a view of the whole circumstances of the case, one of the circumstances being the probability of the plaintiff ■being ultimately entitled to a decree.” (Adams’ Equity, Ed. ’59, p. 725, Note 1; Edwards on Receivers, 2.)

A prima facie right must be made out in the first instance. (Practice Act, section 143.) If it should subsequently appear that the appointment of the receiver was improvidently made, the Court would undoubtedly have power to vacate it. In this instance the Court, upon the trial, was satisfied that the plaintiff, upon his own testimony, failed to sustain the prima facie case made by his pleadings and affidavit. Upon such a state of the case, it was clearly competent for the Court to vacate the order, notwithstanding a motion for a new trial was pending, and admitting the effect of the motion to be to stay proceedings generally. The order might have been vacated before trial upon a proper showing, and with much greater reason after it had appeared upon the trial, to the satisfaction of the Judge, that there was no probability of an ultimate recovery in the action. The Judge does not appear to have vacated the order as a matter of course upon granting the nonsuit. He took the question under advisement, and it must be presumed that the propriety of continuing the receiver, under all the circumstances of the case, was fully considered. We cannot perceive, from anything shown by the record, that the Court, in vacating the order, exceeded the bounds of a sound judicial discretion. We may add, it is not clear that the affidavit makes a sufficient prima facie case to justify the appointment of the receiver in the first instance..