Gates v. McGee

Citations

• 15 S.D. 247
• 88 N.W. 115
• 1901 S.D. LEXIS 115

Syllabus

<p>1. Where defendant demurred to an application for an alternative writ of prohibition for insufficiency of facts, and no objection was made to the return, the court will consider the matter as an application, on notice, for a peremtory writ of prohibition, to which defendant has answered without raising an issue of fact, and will, therefore regard the facts disclosed in the application as true.</p> <p>2. Under Comp. Laws, § 5015, providing that a receiver may be appointed for an insolvent corporation, the circuit court has jurisdiction to appoint a receiver for a corporation on the complaint of a stockholder alleging the insolvency of the corporation, where the court finds that the corporation is in fact insolvent.</p> <p>3. Where a 'circuit court has appointed a receiver of a corporation at the suit of one stockholder on the ground of its insolvency, another circuit court cannot, pending the receivership, on the complaint of another stockholder and judgment creditor alleging fraud in the first proceedings, enjoin the receiver from performing his duties, and appoint another person as receiver, the latter action not being one to vacate a fraudulent final judgment, but being an attempt to stay pending proceedings, and hence contrary to Comp. Laws § 4650, prohibiting the granting of an injunction to stay a pending judicial proceeding.</p> <p>4. Where the circuit court which appointed a receiver of an insolvent corporation may remove him if he is unfit, and appoint a proper person, where the judgment providing for the appointment of a receiver may be vacated by the court which made it upon a showing that it was fraudulently procured, and where the judgment appointing the receiver may be modified, upon a proper showing by the court which made it, no reason exists for another circuit court exercising jurisdiction for the correction of such matters.</p> <p>5. Under Comp. Laws, § 5531,.providing that the supreme court may issue a writ of prohibition to an inferior court w