
    R. W. McCHESNEY et al. v. KONA SUGAR CO., LTD.
    Appeal from Circuit Judge, Third Circuit.
    Submitted March 30, 1903.
    Decided April 13, 1903.
    Frear, C.J., Galbraith and Perry, JJ.
    It is not an abuse of discretion for a court of equity appointing a re■eeiver to deny, without prejudice, a petition for leave to institute against the receiver “such, appropriate suits as your petitioner shall he advised in the premises,” or to fail to indicate, of its own motion, and under a prayer for general relief, the nature of the proceedings which the applicant should institute and the court in which such proceedings should be brought.
   OPINION OF THE COURT BY

PERRY, J.

The bill in tlic* above entitled suit was brought, before the Circuit Judge of the Third Circuit, for the' foreclosure of a lien claimed ag’ainst the Kona Sugar Co., Ltd., and for the appointment of a receiver of the property of that corporation. Some months after the appointment of the receiver, the Kapiolani Estate, Ltd., presented a petition to- the Circuit Judge wherein it alleged that the Kona Sugar- Company was the lessee of and that its plantation, mill and other works were situated upon certain lands of the petitioner, that the rent of such lands for a period prior to the date of the- appointment of the receiver and also for the time subsequent thereto was due and unpaid, that the company and the receiver refused to pay such rent, that the receiver, by virtue of a certain contract or proposed contract referred to- in the petition, has committed or is about, to commit a. breach of the condition of the lease against assignment, and that by reason of these facts the company has forfeited all right to retain and enjoy the e-state created by the lease. The prayer of the petition was that leave be granted to tbe petitioner “to institute and prosecute to final judgment and execution such appropriate suits as your petitioner sliall be advised in tbe preanises” against tlie company or the- receiver ox both for the purpose of securing a judgment of forfeiture and a writ of restitution.

Upon the hearing- of the petition the court asked counsel for the petitioner whether the petitioner was ready to institute the desired proceedings, whether such proceedings would he at law or in equity and whether in that or in some other court. To each of these questions counsel replied, in effect, that he did not know. The petition was denied “without prejudice to petitioner to take suck other proceedings as it may deem meet.” Prom this order the present appeal was taken.

That a receiver cannot be sued or his possession of property held by him as such disturbed, without the permission of the court appointing him, is not disputed by the appellant; nor is it disputed that it is within the judicial discretion of such court to grant or to withhold such permission. Such leave is usually granted unless it appears clealy from the application that the demand has no legal foundation. Beach, Receivers, §652. It would, perhaps, be an abuse of discretion to refuse leave where a probable cause of action is shown. It is also clear that it is discretionary with- the court to allow the bringing of an independent action or suit in another court or to: compel the party to proceed by petition in the suit in which the receiver was appointed, (Beach, Receivers, §§654, 649; High, Receivers, §254b; Bank v. Landauer, 68 Wis. 44) although le-ave to sue in another court is ordinarily refused if the court having jurisdiction in the original suit is competent to hear and determine the controversy. Beach, §658; High, §254b; Olds v. Tucker, 35 O. St. 581. This discretionary power last referred to should not be surrendered or transferred by the court to any party claimant, and yet that is, in effect, what the present applicant in its petition asked the court, to- do. It certainly was not- an abuse of discretion to refuse the permission asked for. It is contended, however, that under the prayer for general relief the court could have indicated what proceedings were, in its opinion, proper to be brought and granted leave accordingly, and the suggestion is made that the applicant would be satisfied with leave to bring an action for summary possession in a District Court or, in the alternative, a- petition before the Circuit Judge for an order directing the receiver to pay the rent due or to yield possession. This suggestion is made for the first time in this court; it was not made to the Circuit Judge. The petitioner before the Circuit Judge stood upon his petition as presented and although directly requested to- do so failed to inform the court of the nature of the procedings desired to be instituted or as to what court the action or suit would be brought in. While it was in the power of the Oircuit Judge to specify, of his own motion, what course the applicant should follow concerning these matters and to give leave accordingly, it was not his duty to do so, much less can it be said that by failing to do so he committed an abuse of discretion. His order expressly leaves the Kapiolani Estate, Ltd., at liberty to apply in due form when it has concluded what proceeding it is that it desires to bring.

G. IF. A.shford and E. A. G. Long for appellant.

J. W. Gaflwart for appellees.

The order appealed from is affirmed.  