Fischer v. Superior Court

Garoutte, J. During the pendency of an action entitled Behlow et al. v. Fischer et al., one Lane was appointed receiver to take possession of and manage certain mining property pending the result of the litigation. Subsequently a judgment was rendered for plaintiffs in said action, in which judgment said Lane was re-appointed receiver, with full power and authority to manage, conduct, and carry on this mining property.

The present proceeding is an application for a writ of prohibition, commanding respondents to desist from acting under said order. The application for the writ and the order to show cause were made prior to the rendition of the aforesaid judgment, but that judgment includes the authority under which the receiver is now acting, and for that reason we shall address ourselves to the legal sufficiency of that authority, although the [71]jurisdictional question presented is probably the same under either order, and the argument of counsel so seem to concede.

Petitioner’s position, as stated in his reply brief, is that the “ superior court acted without jurisdiction in wresting the possession of the mines from the corporation, which was the undisputed owner of them, and placing a receiver in charge of them and carrying on the business of the corporation.” The case of Behlow v. Fischer is now in this court upon an appeal from the very judgment in which the order appointing the receiver, and which order we are now considering, is found; and that nothing may be said in this opinion which might interfere to any degree with the full consideration of the appeal upon the merits when it is finally submitted, we feel constrained to confine the examination at hand within narrow limits.

The action of Behlow v. Fischer may fairly be said to be a suit in equity for the dissolution of a copartnership, for an accounting and for the setting aside of certain transfers of stock on the ground of fraud practiced by the alleged copartner, Fischer. A corporation known as the Consolidated Golden Gate and Sulphuret and Developing Company was joined as codefendant, it appearing that the title to the property over which the receiver was placed in charge stood in the name of said corporation.

It will not be necessary to enter into a discussion of the principles and authorities relied upon to sustain the proposition that a court of equity cannot appoint a receiver to take possession of the property of a corporation pending litigation, for petitioner’s ease fails before it reaches that position.