ON PETITION FOR REHEARING.
STOCKSLAGER, C. J.Respondents in this case filed their petition for what is termed.a limited rehearing, “with a view to the correction of what we think is an error in the order of the court directing that a receiver be appointed, and ask that said order be modified to permit respondents to answer the complaint in said cause and deny the allegations of said complaint, to the end that complete justice may be done.” So says the petitioner. Again it is said: “Respondents now stand ready, and at all times have stood ready, to show the falsity of all the allegations of the complaint upon which a receiver is asked to be appointed, except the liability to insolvency, and to show that said liability is caused by the wrongful acts of the appellant.”
As shown by the complaint in this action, the substance of which is embodied in the opinion, a number of reasons were enumerated why a receiver should be appointed to take charge of the property of this corporation and preserve it from waste, *49and whether a direct charge of insolvency was alleged or not, the allegations were sufficient to show that the ultimate result -of the management would be insolvency. These allegations were met by a demurrer which was sustained by the learned trial judge; but this court was of the opinion that the showing was sufficient to warrant the appointment of a receiver under the provisions of subdivision 5 of section 4329 of - the Revised Statutes. It says a receiver may be appointed "when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights. ’ ’
Learned counsel for respondents says that his. time was too limited to prepare an answer and meet the issue at the time the application was set for hearing. Beyond doubt an application for an extension of time in which to prepare his answer would have been granted by the lower court, and the allegations of insufficiency, incompetency, with other more serious and far-reaching charges, were of a nature that should have been met by a positive denial other than by demurrer, which in effect admits the truth of the allegation, but denies that the plaintiff is entitled to the relief demanded.
As to respondents’ right to answer in the lower court now, this court has nothing to say; that right is governed by statute.
We find no merit in the petition, and it is denied.
Sullivan, J., concurs.