Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-04
OREGON SUPREME COURT DECISIONS
Fu Text Published by Courtesy Of Turner Reporter Of the
Supreme Court


due him under the contract and that
no money has been paid him and no
bonds rendered him There was
prayer that he be permitted to inter
yene in the suit between Wilde and
the insolvent bank and that he be
paid his claim in full and for further
relief.
An order was issued, directing the
defendants to show cause upon the
petition and upon a hearing it was
dismissed Petitioner appeals.
Mcbride, J. The method of pro-
cedure adopted by petitioner is in
the main correct There was no
necessity for an order permitting him
to intervene because, as a creditor
whose claim had been proved and ac-
cepted, he was already in court and
in a position to litigate any right or
supposed right that he had in the
premises. The receiver was the
mere agent and officer Of the court
and subject to It's direction and for
any abuse or misuse Of his delegated
authority the orderly remedy was to
petition the court, as was done in the
case at bar, pointing out the abuse
and asking that It be corrected. In
examining into the merits Of such
petition, the court would naturally
be required to take cognizance Of all
that had been done by 1t, in the case,
and having before 1t all the record
would decide whether there existed
proper grounds for the relief de-
manded. AS that record has not
been brought here, we are unable to
say whether or not the court abused
IS discretion in dismls5ing the pro-
ceeding. The petition fails to state
facts emitting petitioner to the re-
lief demanded. 1t questions the au-
thorlty of the receiver and the court
to enter into the contract with the
German American Bank, but petition
er having been a party to that con-
tract is not in a position in this pro-
ceeding to question its validity.
Neither does the petition state
facts sufficient to show any fraud on
the part of Wilde or Deylin 1t
states that they represented to the
petitioner that certain bonds we're as
good as money and that he would
get his money sooner by entering
into the contract to take a part of it
in bonds than by waiting for liquida-
tion of the insolyent bank He states
that he afterwards discovered these
representations to be false or un-
true but does not state that Wilde or
Deylin knew them to have been un-
true when they made them or that
they were made with intent to de-
ceive him or that his facilities for as
certaining their value we're rot as
good as theirs; or that these repre-
sentations were anything except
mere opinions, He alleges that he
has repeatedly demanded the money
due him by virtue of the provisions
of the contract, but does not allege
that he has ever offered to perform
the whole contract by accepting the
bonds He demands to be paid in
full in cash when It appears that
there are several thousand deposit
tors who, so far as It appears, are as
Justly entitled to be paid as himself
and makes no showing as to how
such a payment would affect them.
In the absence Of the complete rec
ord of the circuit court in regard tc
the financial condition of the lnsol-
vent estate and in view of the fact
that the petitioner has stood by l6r
more than three years and allowed
the liquidation of the insolvcnt es-
tate to proceed without interposina
any objection, we decline to say that
the circuit court abused It's liscre.
tion in dlsmissing his petition.
MI, ,tn,v,, q, , ,ulr,nn1