Page:North Dakota Reports (vol. 2).pdf/241

 mortgage the crop was the mere opinion of plaintiff's counsel, not supported by any facts alleged.

It is doubtless true that receivers are sometimes—though very rarely—appointed ex parte. Our statute (§ 5017, Comp. Laws), contemplates such a possibility. But to justify such a summary proceeding the facts and circumstances must create a very grave exigency, and above all, the application must be of such a strong and convincing nature that the court is reasonably certain to decide the case finally in favor of the applicant. “In suits between conflicting claimants of land, especially between parties claiming under legal titles, a receiver will not ordinarily be appointed.” 3 Pom. Eq. Jur. § 1333. See, generally, High, Rec. § 111; Sedg. & W. Tr. Title Land, § 631. Plaintiff does not show a case coming within either of the classes mentioned in the statute (§ 5015, Comp. Laws), in which a receiver is expressly authorized, nor do the facts set out show that this is a case where “receivers have heretofore been appointed by the usages of courts of equity.” Railroad Co. v. Tosco Circuit Judge, 44 Mich. 479, 7 N. W. Rep. 65. But the appointment of the receiver in the case at bar, even if notice had been given and a hearing granted, would have been in flagrant violation of established practice in such cases. The plaintiffs’ equities, as stated in the complaint, are not supported by the plaintiffs’ affidavit or otherwise; nor is the complaint verified by any person who claims to have personal knowledge of the facts set out. The verification is made on information and belief by one of plaintiffs’ attorneys, if the pleading can be properly considered as verified by an attorney where, as in this case, the affidavit fails to state, as the statute requires, why the attorney verified it. The ex parte order shows on its face that it was based on an affidavit of the same attorney who attempted to verify the complaint; but such affidavit, as already stated, does not anywhere allude to the original grounds of the action. But if the complaint was before the court, and constituted a part of the showing made by plaintiff, the result is that the ex parte order ousting defendant of the possession of crops planted by him and growing upon the land upon which he had long resided, and the orders enlarging the powers of the re-