Opinion
No. 3016
March 10, 1934.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, J.
G. Gunzendorfer, for Movent:
Cooke Stoddard and Ayres, Gardiner Pike, for Appellant:
Section 1653 N.C.L. provides that the district court may limit the time within which creditors shall present and make proof to the receiver or trustee of their respective claims against the corporation, and may also prescribe whether notice shall be given to creditors by publication or otherwise of such limitation of time. And by sec. 1654 N.C.L. it is provided that every claim against any corporation for which a receiver or trustee has been appointed shall be presented to the receiver in writing under oath. Pursuant to these provisions of the general corporation law of 1925 the district court made its order fixing four months as the time within which creditors should present their claims.
It is expressly admitted that the Nevada Machinery and Electric Company did not present any claim to the receiver nor file any claim in court. Unless the claim were filed within the designated period the district court could not acquire authority to consider and pass upon the claim of the Nevada Machinery and Electric Company. Barber v. International Co., 74 Conn. 652, 51 A. 857, 92 Am. St. Rep. 246; Leo v. Green (N.J. Eq.), 28 A. 904; Leadville Coal Co. v. McCreery, 144 U.S. 475, 35 L.Ed. 824; Smith v. Jones Lumber Merc. Co. 200 Fed. 647; Tex. P. Ry. v. Johnson, 151 U.S. 81, 28 L.Ed. 81; Franklin Trust Co. v. Northern Co., 42 N.Y. Sup. 211.
The situation in the instant case is this: the receiver or trustee appointed by the trial court took into his possession property claimed by appellant; appellant intervened in the receivership proceeding and sought the order of the lower court for the restoration of the property claimed by appellant. The procedure is in conformity with the rules and declarations laid down by this court in several cases, to govern parties in the precise situation in which appellant was. Irving National Bank v. District Court, 47 Nev. 86, 217 P. 962; Mack v. District Court, 50 Nev. 318, 258 P. 289. See, also, 53 C.J. secs. 125, 126, 247, 386 et seq. and 394.
OPINION
On May 29, 1931, Charles Hansen, the respondent herein, was appointed and qualified as receiver of the business, property, and assets of Piggly Wiggly Nevada Company, a corporation, and upon court order the creditors of said corporation were ordered to file their claims against the corporation with the receiver within four months of the date of the first publication of notice to creditors, to wit, June 1, 1931.
On March 12, 1932, the appellant filed its petition in the cause praying judgment against the trustee for the recovery of the possession of all the personal property described in the petition or for the value thereof in case delivery could not be had as a preferred claim. Upon issues joined on the petition and answer of the trustee and after a full hearing, the trial court rendered its decision, findings, and judgment in favor of the trustee and against the petitioner, whereupon the petitioner and appellant perfected its appeal to this court from the trial court's judgment and order denying a new trial.
The appeals are now before us upon the respondent's motion to dismiss. Quoting from the notice of motion, the motion is based upon "the ground that the district court of the Second Judicial District of the State of Nevada in and for the County of Washoe was without jurisdiction to hear and determine the petition of said Nevada Machinery and Electric Company, and per consequence the Supreme Court of the State of Nevada is without jurisdiction to hear and determine the appeal of said Nevada Machinery and Electric Company, for the like reason."
We note that the respondent in its notice of motion did not specify the particular ground upon which it was claimed that the court was without jurisdiction to hear and determine the petition of the appellant, but reference to the argument of counsel for the movent shows that counsel for movent takes the position that in the matter of a receivership of a corporation the presentation, filing, and proof of claims is made a condition precedent to the claimant's right to have its claim adjudicated, and, without such claim having been filed within the time specified by the court's order, the appellant has no standing in the cause as a creditor of the corporation, citing in support of this contention sections 1653 and 1654, N.C.L. Counsel seems to have fallen into the error of assuming that the appellant in its petition asserts a claim for a money demand or its equivalent. Such is not the fact. Appellant sought to proceed by way of intervention, which was held to be a proper remedy in such a situation in Irving National Bank v. District Court, 47 Nev. 86, 217 P. 962.
It appearing from the record that the trial court had jurisdiction of the subject matter, the motion to dismiss the appeals from the judgment and order is denied.