Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-06-21
SUPREME COURT DECISION.
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so pay out of the funds of the Jumbo
Mining Company the costs in this
Court, and when he has complied with
these orders, and his said account has
been allowed and approved by this
Court he will surrender to the Jumbo
Mining Company all property belong
ing to said company of whatsoever
kind and character the same may con.
sist, taking its receipt therefor and
file the same in this Court, ard when
so filed. the said receiver shall Re
relieved from any further liability es
such receiver, and his bondsmen be
released from any further liability to
be thereafter incurred"
From the brief Of petitioner filed in
response to the order of this Court
we quote the following portions as
showing the reasons cOntended for by
counsel for petitioned why this Court,
regardless of the decision of Judge
Nurphy, should not dismiss this pro-
ceeding:
The question argued and submit
ted to this Court was:
Are the orders made and entered
by the Court of the First Judicial Dis
trict void by reason of the fact that
they were made in excess Of or with
out the jurisdiction Of the Court max
ing them
We respectfully submit that nothing
decided by the Court touches that
point. 1t is true that upon the final
hearing and after said receiver hal
possession and charge of the proper
ty Of petitioner for a period Of four
months. or Whereabouts, the Court did
upon rendering final Judgment, dis
charge the receiver. but it was not
upon the ground that he had no juris-
diction to appoint him, but for the
, reason that the alleged facts upon
which he was appointed were not true
and were unfounded in fact. But that
order discharging him was coupled
with the order that petitioner. the
; Jumbo Mining Company, pay all the
costs Of the proceeding, which costs
including the receivers claim greatly
exceed ten thousands dollars
The relief prayed for in the petition
was that the order of the trial Court
be declared null and void as having
ben made without and in excess Of
jurisdiction. The relief alleged 10
have been granted was the discharge
Of the receiver upon the grounds that
the allegations Of the pleading upon
which he was appointed and which
was the foundation of his appointment,
were untrue. But said order being on
condition that the petitioner pay all
|, the costs, not only of the proceedings
but of the receiver also, the effect of
such Judgment is l adjudge that you
pay cetrain sum of money as COSTS
to the receiver. but | also discharge
; him-nOt set aside and dissolve the
order appointing him"
From the argument Of counsel for
petitioner. it will be manifest that two
reasons are urged why this court
should not dismiss this proceeding
but should pass upon the merits of the
questions originally presented. Tho
first one is. in effect. that the lower
Court did not dissolve the injunction
and discharge the receiver upon the
, ground of want of jurisdiction to
make orders, but because the alleged
: facts upon which the original orders
5 were made. were not sustained by
the evidence: and, second, because the
Court in discharging the said receiver
has imposed the burden of his fees
1 upon petitioner herein. an innocent
party.
We think neither of these grounds
affords a sufficient reason why this
Court should, in this extraordinary
proceeding. now pass upon the ques'
+ tons argued upon submission of this
cause upon its merits. The relief
p, prayed for to the extent of dissOlving
-. the injunction and ordering the dis
charge Of the receiver has been grant
{ ed. Whether such relief was granted
g upon correct or erroneous grounds.
/ so far as this proceeding is concerned
the effect is the same. (Conley V,
Chedic New. 2r2.i
COnceeding for the purpose of the
argument, that the appointment OF
? the receiver was in excess OF tbs
jurisdiction of the Court and Therefore
void ought this Court to determine
I that fact in this proceeding in order
s to pass upon the question OF the re
l.. ceiver's fees. claimed to be taxed a.
costs against petitioner. We thinl
' not While it does not clearly appea
t from the decision OF Judge Murph,
that the fees of the receiver haV,
been, or are TO be ultimately taXe'
=. AGAINST the petitioner nevertheless, l
VI thew are and the same IS erroneous
the urgency is not such that the petit
Toner has not plain. speedy and ade
n quate remedy by appeal. for thi,,
4 court will modify or set aside void a
/ we'll as erroneous judgments or order:
II upon the error being properly presen
III ed to this Court. tHastings VS.. Burr
ing Moscow Co. 2 New. 80
II For the reasons given. ii is ordere
Ii and adjudgeG that the proceedings /
II this Court be dismissed.
IL Filed. June 16, 1905.