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Opinion of the Court-FULLERTON, J.
extraordinary remedy; he must show either that tho business of the corporation is being diverted from the purposes for which it was organized to his injury, that its property is in danger of being wasted, destroyed, or removed from the jurisdiction of the court, or that there is no competent person entitled to manage its business or hold its property pending the litigation. To make a prima facie showing of right to share in the profits of the concern, and show a denial of such right by the persons in actual control, is not sufficient. For wrongs of this character the ordinary remedies afforded by the courts will furnish ample relief. Moreover, it is a general rule that a party who applies for the appointment of a receiver must show diligence. Laches in making the application is alone a sufficient reason for denying the application. It is also the rule in this jurisdiction, if not the general rule, that an application for the appointment of a receiver pendente lite is addressed to the sound discretion of the trial court, and his ruling thereon can only be reviewed as for an abuse of discretion. Roberts v. I'ashington National Bank, 9 Wash. 12 (37 Pac. 26); Cameron v. Groveland Improvement Co. 20 Wash. 169 (5+ Pac. 1128, 72 Am. St. Rep. 26). Tested by these rules, it is clear that the trial court did not err in refusing to grant the application of the applicant for a receiver pendente lite in the present case. No necessity for the appointment is shown. It does not appear that the property of the corporation is endangered, nor does it appear that its business is being diverted from the purposes for which it is incorporated, nor that it is not being properly and economically managed. In fact, the only thing shown which even remotely tends to warrant such an order is the denial of the right of the applicant to inspect the books of the concern. But
the denial does not seem to have been arbitrary. It was based upon the contention that the applicant had no interest in the corporation because he had not contributed his agreed proportion of its capital stock. More than this, the denial of this right had continued throughout the life of the corporation, and the successor in interest of the appellant, whose laches must be imputed to him, took no steps to enforce his asserted interests. This was such a lack of diligence as to warrant of itself a denial of the application. Finding no abuse of discretion on the part of the trial court shown by the record, the order appealed from will stand affirmed.
REAVIS, C. J., and ANDERS, DUNBAR and WHITE, JJ.,
[No. 3817. Decided December 3, 1901.]
SPOKANE DRY GOODS COMPANY, Appellant, v. H. G. FRITZ, Respondent.
APPEALABLE ORDER ORDER DISSOLVING ATTACHMENT.
An order discharging an attachment is not appealable under Laws 1893, p. 119, § 1 (Bal. Code, § 6500), which specially provides for an appeal from an order refusing to discharge an attachment, but makes no provision for an appeal from an order discharging an attachment; nor is it applicable under the subdivision of that section, which permits appeal from any order affecting a substantial right by preventing a final judgment therein or discontinues the action.
Appeal from Superior Court, Spokane County.-Hon. WILLIAM MCDONALD, Judge. Appeal dismissed.
Danson & Huneke, for appellant.
Opinion of the Court-ANDERS, J.
The opinion of the court was delivered by
ANDERS, J.-This is an appeal before final judgment from an order discharging an attachment. At the outset of the argument in their brief the learned counsel for the appellant frankly state that they are aware that this court has held that such an order is not appealable; but they nevertheless insist that our prior decisions are not in accordance with the provisions of the constitution or of the statute relative to appeals to the supreme court, and should, therefore, be overruled. We have heretofore considered this question so often, both before and since the passage of the appeal act of 1893 (Laws 1893, p. 119), that we are not inclined either to enter upon any elaborate discussion of it at this time or to recede from our former rulings.
In Jensen v. Hughes, 12 Wash. 661 (42 Pac. 127), which was an appeal from an order dissolving an attachment, this court observed :
“Chapter 61 of the Laws of 1893 provides what orders, judgments, or proceedings in the superior court may be appealed from; and subdivision 4 of § 1 (Bal. Code, $ 6500] provides for an appeal from an order refusing to discharge an attachment. Prior to the enactment of this law it was the uniform holding of this court that neither an order dissolving, nor one refusing to dissolve or discharge, an attachment was appealable; and, inasmuch as the subsequent legislation above referred to provided for an appeal from an order refusing to discharge an attachment, and made no provision for an appeal from an order discharging an attachment, we should not be warranted in coming to the conclusion that the legislative will expressed in the chapter above referred to comprehended an appeal from an order discharging an attachment."
It is true that in the opinion from which we have quoted nothing was said as to the scope and effect of subdivision 6 of the section of the statute therein referred to, but it does not follow from that fact that that case does not militate against the contention of appellant. In fact, the whole section was there considered by the court, although the decision was based on a familiar rule of statutory construction. In Maxwell v. Griffith, 20 Wash. 106 (54 Pac. 938), it was said, in effect, that, under the statute in question, an order discharging an attachment is reviewable on an appeal from a final judgment in the action; but the former holding of this court was not there overruled. Under the law now in force, however, and which was enacted after this appeal was taken, there can be no doubt that an order dissolving an attachment is appealable; for the legislature, by the amendatory act of February 28, 1901 (Laws 1901, p. 28), has provided in express terms for an appeal from any order discharging, or refusing to discharge, an attachment. In accordance with the uniform practice of this court in similar cases, the appeal must be dismissed at the cost of appellant, and it is so ordered.
REAVIS, C. J., and DUNBAR, FULLERTON and MOUNT, JJ., concur.
[No. 3846. Decided December 3, 1901.]
AUSTIN J. ROBERTS, Respondent, v. LEWIS W. CENTER,
EVIDENCE- ABSTRACT OF TITLE ADMISSI
The fact that Bal. Code, § 5150, requires plaintiff in an action of unlawful detainer to incorporate an abstract of title in his complaint would not make a certified abstract admissible in evi
Opinion of the Court-MOUNT, J.
dence for the purpose of proving title, since Id., § 6046, does not permit public records to be proved by the certificate of any other person than the officer having such record in his possession.
SAME PLEADING -ADMISSIONS - FAILURE TO DENY ABSTRACT.
The failure of defendant in an action of unlawful detainer to deny the paragraph of the complaint setting up an abstract of plaintiff's title is not an admission of its truth, where the answer denies plaintiff's title or right to possession, since such answer necessarily denies the abstract, which merely shows the chain of title under which plaintiff claims.
SAME - CONFESSION AND AVOIDANCE - BURDEN OF PROOF.
In an action of unlawful detainer where the gist of the pleadings is an assertion of title in plaintiff and an answer of title in the United States, with the defendant in possession as a homesteader, the admission by defendant, that a patent had been issued by the United States to plaintiff's grantor, but that said patent was null and void, would not constitute a plea of confession and avoidance and throw the burden of proof on defendant, since the effect of such answer is merely a denial of plaintiff's title.
Appeal from Superior Court, Pierce County.--IIon. William H. H. KEAN, Judge. Reversed.
George W. Fogg, for appellant.
The opinion of the court was delivered by
Mount, J.—This action was brought under $ 55495551, Bal. Code. The complaint alleges, in substance, that the plaintiff was the lawful owner of the lands described; that the defendant, without having title or color of title, wrongfully and unlawfully entered upon said premises; that on May 13, 1899, plaintiff caused notice in writing to be served upon defendant, demanding possession of said property, and requiring defendant to remove therefrom; that defendant refused and failed to remove therefrom, although more than three days have