National Mechanics Banking Ass'n v. Mariposa Co.

I think the motion should be granted: 1st. Because there is no propriety in allowing one creditor to make a motion for a receiver, and, by stipulation with the attorney for the defendants, to allow said proceeding to lie dormant for months, until other creditors proceed to collect their claims, and then by consent of the attorney, attempt to gain a priority. The rule which is applied to dormant executions should be applied to such proceedings, and the vigilant creditor should be allowed priority.

2d. Because it is apparent, from the whole facts in the case, that there was collusion in regard to the proceeding in the case of White against the company, to defeat the claim of the Bank. The same attorney appeared for the defendants, in both cases; and while he was postponing the case of the bank, from day to day, under offers of settlement, and after the appointment of a receiver, and approval of the bond, while, under another promise of an offer of settlement, he obtained a postponement of the filing of the papers, and a further delay for the same purpose, such attorney was consenting to the proceeding in the case of White; which was concealed from the attorneys for the bank, and the application for which was made out of the ordinary course of business, and not at the usual place for hearing such motions, as prescribed by the rules of the court. ;

3d. Because, in fact, the receiver in the c^se of the bank was appointed on the 17th of May, and the bond approved on the 18th of May; while the order in the other case was made on the 18th of May. and the bond approved on that day.

The attempt to overreach and defeat proceedings of other creditors, by obtaining a postponement of the filing of the papers, should not be allowed to succeed, when it is apparent that the attorney of the defendants knew of both proceedings; knew that the receiver had been ap*425pointed on the 17th of May; and obtained such delay for the evident purpose of advancing the other application, with the view of giving priority therein.

The motion should be granted, with $10 costs.

Ingraham, Justice.]