
    [No. 5183.
    Decided April 4, 1895.]
    Oudin & Bergman Fire Clay Mining & Manufacturing Company, Apppellant, v. Thomas F. Conlan et al., Respondents.
      
    
    Receivers—Appeal and Error—Supersedeas oe Temporary Receivership—Judgment—Remanding With Recourse to Bond in Lieu oe Appointment oe Receiver. Upon, appeal from an order appointing a temporary receiver of a corporation, with a supersedeas of the receivership pending the appeal, the supreme court will not prejudice the trial on the merits by discussing the merits, where there was no abuse of discretion in appointing the receiver, and the cause may he remanded with directions that the supersedeas bond stand in lieu of tbe receivership until tbe termination of the merits of tbe case, with recourse thereto by respondents for any loss sustained by reason of superseding tbe receivership.
    Appeal from an order of the superior court for Spokane county, Richardson, J., entered January 12, 1904, appointing a temporary receiver pending the action, upon application of the defendants, after a hearing upon affidavits and the cross-complaint of the defendants, in an action for an injunction.
    Remanded with recourse to the supersedeas bond.
    
      W. J. Thayer, for appellant.
    
      Danson & HuneJce and B. L. Edrrdston, for respondents.
    
      
      Reported in 80 Pac. 283.
    
   Fullerton, J.

Tbe appellant, a corporation, began an action against tbe respondents seeking to have them enjoined from acting as its trustees, alleging that they bad unlawfully and without right assumed to act as such, and bad attempted to oust from its management tbe only person lawfully having that authority. Tbe respondents for answer denied many of the allegations of tbe complaint, and filed a cross-complaint, in which they asked that tbe affairs of tbe corporation be wound up, that its property be sold, and that tbe proceeds of tbe sale be divided among those lawfully entitled to tbe same, and that tbe court appoint a receiver for that purpose. On filing their answer they moved for tbe appointment of a receiver pending tbe action. This motion was denied by tbe judge before whom it was first beard, but later on tbe application was renewed before another judge of the same court, who appointed a receiver and directed him to- take possession, charge, and control of all tbe property of tbe corporation, pending tbe final determination of tbe action between tbe parties. Tbe appellant excepted to tbe order, and appealed therefrom, giving a bond superseding the receiver pending the appeal.

The record sets forth the grievances of the parties at length, but we shall not discuss tbe evidence, as the cause is pending for trial in the court below, and we do nolti care to prejudice a trial of the merits. Suffice it to say, therefore, that we think there was no abuse of discretion in appointing the receiver. As, however, the appellant hag superseded the receiver, and given a bond in the sum of five thousand dollars, conditioned that it will satisfy and perform any order this court may render or make on this appeal, the remittitur will not go to reinstate the receiver, but will direct that the bond stand in lieu of the receiver, and that the possession of the property remain with its present custodians until the final determination of the merits of the case by the court below; the respondents to have recourse upon such bond for any losses they may sustain, or may have sustained by reason of the supersedeas, or the order of this court extending the same. Neither party shall recover costs on this appeal.

Mount, 'O. J., Hadley, and Dunbar, JJ., concur.

Rudkin, Root, and Crow, JJ., took no part.  