Page:North Dakota Reports (vol. 2).pdf/239

 to set out the affidavit at length. It will suffice to say that it does not attempt to set out nor refer to any facts tending in the least to corroborate the material facts stated in the complaint, and constituting plaintiffs’ alleged cause of action and their equities. The affidavit does state that defendant has disobeyed the injunctional order of August 5, 1891; reiterates the alleged insolvency of defendant; that the crop is liable to be mortgaged; and alleges that plaintiffs will be remediless if a receiver of the crop is not appointed; “that the issues are so involved with the proceedings being had in the land department and before the secretary of the interior of the United States that it is very doubtful if the issues herein can be determined at the next term of this court,” etc. On August 6, 1891, a motion was made before the district court on the pleadings and proceedings then had herein to set aside and vacate the order appointing H. D. Harley receiver. Atthe hearing of the motion both parties were represented in court by counsel. The motion was based upon the following grounds: (1) Because said order was made ex parte, and without any notice to defendant; (2) because the records and proofs show no ground for the appointment of a receiver.” In deciding the motion the following order was made: “Ordered that the above motion be, and the same is hereby denied; and on motion of plaintiffs, H. D. Hurley is appointed receiver of said land, as well as the crops thereon, during the pendency of this suit.” The making of all of the said orders is assigned as error in this court, and we are called upon to determine whether they were legally and properly made, and nothing further.

We have no doubt for various reasons that it was an abuse of discretion to make the ex parte order appointing a receiver of the crops sown and planted by defendant upon lands where defendant long had resided. The affidavit upon which the order was made showed no exigency which would justify such an arbitrary and harsh proceeding, if, indeed, it would be proper in such a case to appoint a receiver at all before judgment. Where an injunction is ample to protect property until a motion can be made for a receiver, it is manifestly improper to deprive a party of possession without notice. McCarty v. Peake, 18 How.