Severns v. English , 19 Okla. 567 ( 1907 )

Opinion of the court by

Irwin, J.:

Fours grounds are alleged by counsel for plaintiff in error for a reversal of this case. They are as follows:

. “1. The plaintiff had a plain and adequate remedy at law for the purpose of obtaining possession of the ditcher, namely,by a replevin action, if he was entitled to the possession thereof, and for this reason he had no right to the equitable remedy pursued, namely, by mandatory injunction.

“2. Regardless of the character of his remedj", and even if a remedy existed in equity, still there was no sufficient basis or authority for relief in the case by a mandatory injunction.

“3. If there was a remedy given the plaintiff by injunction, the order of injunction is erroneous and invalid, because the bond required of the plaintiff to obtain the injunction was not to be conditioned as provided by law, in this, that it was not to contain any stipulation for attorney’s fees prescribed by the act of the Oklahoma legislature, approved March 15, 1905 (Session Laws, 319-320).

4. The bond required of the defendant was, an unlawful burden and condition upon which to obtain a stay of the order, for the reason assigned in the last paragraph, and also because not authorized by any law or precedent, and contrary to law.”

It will be noticed that the first three assignments of error are based on the theory that there was a mandatory injunction improperly issued in the case. This contention we think is not well taken, as a reading of the order of the court will show that the only purpose of the injunction part of the order was in aid of and to give force and effect to the ordfer compelling the turning over of the property to the receiver, that it might by him be preserved and accounted for in such a manner as the further order of the court might require. An examination of the record will show that all the court did or attempted to do was to make an order directing that the property in litigation between the parties be turned over to the receiver pending the final disposition of the case. This he had a perfect legal right to do, and he had the right to make all necessary restraining orders as might be necessary to give force and effect to such order. By referring to the journal entry in this case, on page 31, it will be seen that the only restraining condition in the order is in the following language: “He [Severns],his agents, servants, and employees are hereby restrained and enjoined from further use, control, or custody of said ditcher.” And to guard all parties against injury or loss by this part of the order, a good and sufficient bond is provided for. Such orders are necessary for the proper discharge of duty on the part of the receiver, and are clearly within the necessary powers of the court.

In the case of Ex Parte Cohen, 5 Cal. 494, it is said:

“Courts of equity have the power to appoint receivers and to order them to take possession of property in controversy, whether in the immediate possession of defendant or his agent; and in proper cases they can also order the defendant’s agents or employes, although not parties to the record, to deliver the specific property to the receiver.”

And in Wikle v. Silva, 70 Ga. 717, it is said:

“Title to property should not be tried in a summary proceeding for interference with the custody of a receiver, but possession' only may be put in issue in such a manner.”

In Naddox v. Tidwell, 96 Ga. 783, 22 S. E. 390:

“It was proper, on appointing a receiver for an insolvent firm, to require one of the firm’s co-defendants, who it was shown had taken property of the firm, to return that property to the receiver, or give a bond conditioned to pay the value thereof to the petitioners in case the receiver was found to be _ entitled to the property on final hearing.”

It the court did not have power to make and enforce such an order, the appointment of a receiver in many cases would be but an idle farce. The granting of a temporary injunction pendente lite is largely within the discretion of the court, and thte appellate court will not vacate such >an order on appeal, unless there has been a clear abuse of discretion, or the same was granted without authority. Reaves v. Oliver, 3 Okla. 62. W© think the record shows there was no abuse of discretion, but’ only a reasonable and necessary exercise of it. • We are at a loss to see how it can be seriously contended that any reversible error has been committed in this case. No person can be injured by this order, or any substantial rights lost. The order only provides that the property should be turned over to the receiver to await the further order of the court where and when the rights of all parties can be adjusted and amply protected.

The only remaining assignment is the fourth. That is that the bond required of the defendant by this order, in order to stay that portion of the order which required him to turn over the ditcher to the receiver, was unwarranted, and was an unlawful burden upon him. We think there is no doubt, under the law, that where the court has jurisdiction of the parties and the subject-matter, and has appointed a receiver to take charge of and manage and control the personal property involved in litigation, pending such litigation, as an inherent power he has the right to order any party to the litigation to turn over to said receiver any property involved in the litigation in his possession, pending such litigation. Now, if the court had this power, then the mere fact that connected with this order is a condition that the person to whom this order is directed may stay its operation upon filing a bond is not an abuse of this power, and is not exceeding the authority of the court. Such a condition attached to the order would be for the benefit of the party against whom the order is made. The original order being allowable in this court, and being one which the court has a right to make, the party against whom such order was directed should obey the same, and the fact that the court gave him an alternative between obeying the order and securing a stay of the enforcement of the samt by a bond would not render the order invalid.

These are the only assignments of error urged by counsel for plaintiff in error, and having examined the entire record, and finding no error therein, the judgment of the district court is affirmed, at the costs of the plaintiff in error.

Gillette, J., who presided in the court below, not sitting; all the other Justices concurring.