Autenreith v. Hessenauer

By the Court,

Belcher, J.: We do not think the Court erred in denying the plaintiff’s application for a writ of assistance.

When he commenced the action to foreclose his mortgage, and from that time till the application for the writ was denied, the Pacific Brewery—the undivided one half of which was covered by the mortgage—was in the hands of a receiver appointed by the same Court in the case of Junker v. Hessenauer. The plaintiff’s mortgage was dated January 28th, 1869, and on that day Junker filed his complaint against Hessenauer, alleging therein among other things, that the plaintiff* and defendant became equal partners in the brewing business in June, 1864, and had continued to be such up [358]to the time of the filing the complaint, and that the partnership property consisted in part of the Pacific Brewery, and praying that a receiver be appointed to take charge of the property; that there be an accounting between the parties, and that the partnership be dissolved, etc.

The plaintiff did not make Junker a party to his foreclosure suit, nor did he ever in any way intervene in the action commenced by Junker to dissolve the partnership. Both actions were pending at the same time and were tried independently, one resulting in a decree that the undivided half of the Pacific Brewery be sold to satisfy the plaintiff’s-mortgage, and the other adjudging that the whole property was partnership property, and directing it to be sold to' satisfy partnership liabilities. Whether the property was in fact partnership property, and, if it was, whether it became so before the execution of the plaintiff’s mortgage, and whether there were partnership liabilities, are questions which, as against the plaintiff*, had not been tried when this application was heard, -and could not be without some appropriate proceedings instituted for that purpose.

Until such proceedings were taken, and the respective fights of the parties determined thereunder, the Court did not err in refusing to surrender to the plaintiff a possession which it ha,d taken and was holding by its receiver.

Order affirmed.