Anderson v. Matthews

• Citation: 57 P. 156,8 Wyo. 307
• Parties: ANDERSON v. MATTHEWS, ET AL
• Decision Date: 08 May 1899
• Court: United States State Supreme Court of Wyoming

57 P. 156

8 Wyo. 307

ANDERSON v. MATTHEWS, ET AL

Supreme Court of Wyoming

May 8, 1899

ERROR to the District Court, Sweetwater County, HON. DAVID H CRAIG, Judge.

On motion to dismiss.

Motion to dismiss denied.

John H Chiles, for defendant in error.

An order of a district judge made at chambers or in vacation is not reviewable. (Const., Art. 5, Sec. 2; R. S. of 1887, Sec 3128; Bank v. Moorcroft Ranch Co., 5 Wyo. 50; Hubbell v. McCourt, 44 Wis. 584; Carter v James, 96 Ga. 280; 2 Ency. Pl. and Pr., 96-98; 4 Id., 365, 366; Bank v. Smith, 1 S. D., 28; Black Hills v. Grd. Isl., 2 Id., 546; Holden v. Haserodt, 3 S. D., 4; Post v. Carpenter, 2 Fla., 441; Prince v. McCarty, 61 Wis. 3; Stewart v. Allen, 68 Id., 61; State v. Brownell, 80 Id., 563; Sufferin v. Chisholm, 1 Wash. Ter., 486; Sheldon v. McKnight, 34 O. St., 316; Hottenstein v. Conrad, 5 Kan. 249; Kansas, etc., Co. v. Ry. Co., 31 Id., 90; Lyon Co. v. Esmeralda, 18 Nev. 166; Brewster v. Hartley, 37 Cal. 15; Hawes on Juris., 27.) The statute declaring court open at all times does not authorize appeals from an order of judge at chambers. (L. 1895, p. 43.)

The authorities are not uniform as to whether an order appointing a receiver is a final order. It is held not, by some courts. (2 Ency., Pl. and Pr. , 121, 122; Snarley v. Buggy Co., 36 Kan. 106; Boyd v. Cook, 40 Id., 675; High on Receivers, 25-29; Smith on Receivers, 69-73.) The receiver is a necessary party. (Twitchell v. Weil, 49 P. 634; Scannell v. Felton, 57 Kan. 468; 2 Ency., Pl. and Pr., 192; Denebiem v. Wingate, 51 P. 909; Mosler v. Bank, Id., 309; Pac. Coast Tr. Co. v. Billingham, Id., 382; 47 O. St., 250; Siebel v. Bath, 5 Wyo. 409.)

E. E. Enterline and D. A. Reavill, for plaintiff in error.

The orders complained of are final orders and reviewable on error. (Bank v. Moorcroft Ranch Co., 5 Wyo. 50; R. R. Co. v. Sloan, 31 O. St., 1; Whit. Ann. Code, Sec. 6707 and note.) Under laws of 1895, Ch. 21, the orders made by the judge are court orders. (Ins. Co. v. Weber (N. D.), 50 N.W. 703.)

CORN, JUSTICE. POTTER, C. J., concurs. KNIGHT, J., did not sit.

OPINION

CORN, JUSTICE.

This is an action to foreclose a mortgage, and upon the application of the plaintiff, Hannah Matthews, a receiver was appointed. Anderson, the plaintiff in error, one of the defendants below, being the holder of a senior mortgage, filed an answer and cross petition asking for the foreclosure of his mortgage and for the appointment of a receiver in his behalf; and subsequently filed his motion, supported by affidavits, praying for the appointment of such receiver, and that the former appointment be set aside. The motion was denied, and he comes to this court and assigns for error the appointment of the receiver on the application of Mrs. Matthews and the denial of his motion. Both orders complained of were made by the judge in vacation in other counties of the district than that in which the suit was pending. Mrs. Matthews moves to dismiss the proceedings in error on the grounds that this court is without jurisdiction, that the decision complained of is an interlocutory order and not a final judgment or order, and that there is a defect of parties in that the receiver is not made a party. This hearing is had only upon the motion to dismiss.

The defendant in error insists that the orders complained of are not appealable and that this court is without jurisdiction under our constitution and statutes.

The preliminary inquiry is whether this court has jurisdiction on appeal of orders made at chambers as distinguished from orders of court, and we think it has not. In Wisconsin there was a statute providing for an appeal directly to the supreme court from orders made by the circuit judge at chambers. The constitution of that State provided that except in cases otherwise provided by the constitution, the supreme court should have appellate jurisdiction only, coextensive with the State, and should have a general superintending control over all inferior courts. The supreme court held that under this provision the appellate powers of that court were limited to the judgments and orders of courts and could not be extended by the Legislature to the acts or decisions of officers or persons not acting as a court; that the jurisdiction to review the acts of such officers was in the circuit court itself, and that it should be deemed exclusive. The case is much stronger under our constitution and statutes. For while Section 2 of Article 5 of the constitution gives to the supreme court general appellate jurisdiction, the same section in providing for its general superintending control over inferior courts speaks of courts only; and Section 18 of the same article provides that "writs of error and appeals may be allowed from the decisions of the district courts to the supreme court," there being no provision allowing writs of error or appeals from the decisions of judges or other officers. The very clear indication is that the appellate powers of the supreme court are limited to a review of the decisions of the district courts, the distinction between a court and the judge or other officer being clearly marked in our constitution and statutes.

This view is also in accord with the judicial system of the State, the district court having original jurisdiction under the constitution of all causes both civil and criminal. The apparent purpose was that all matters, unless otherwise specially provided by the constitution, should be adjudicated in those courts before the powers of the supreme court could be invoked. The statute proceeding upon the same idea, provides that "a judgment rendered or final order made by the district court may be reversed, vacated, or modified by the supreme court for errors appearing on the record." It seems to be reasonably clear that an order of the judge at chambers, as such, is not appealable to this court.

But we have certain statutes which it is claimed change the aspect of the question. By Chapter 21, Laws of 1895, it is provided: "Section 1. In addition to the terms of the several district courts of this State, as fixed and provided by law, each district court shall be open at all times for the transaction of business in the entry of judgments, decrees, orders of course, and such other orders as have been made or granted by the district court, or any judge thereof, and for the hearing and determination of all matters brought before the court or judge, except the trial of issues of fact. When any cause, action, or matter has been heard by the court or judge, the decision may be made out of term, and such decision may be made by order, or by direction that an order, judgment or decree be entered; and upon the filing in the office of the clerk of the district court, of the county wherein the action or proceeding is pending, the decision in writing signed by the judge, whether it be an order, a judgment, or decree, as the case may require, shall be entered by such clerk in conformity with such decision."

"Sec. 2. The judges of the several district courts of this State may, at their discretion, with the consent of the parties, try issues of law and of fact in the vacation or recess of the district court, and may decide such issues either in or out of term; and thereupon judgment may be rendered with the same effect as upon issues tried and determined in term time."

The purpose of this act is unmistakable. At the time of its adoption there was in force an act, Chap. 70, Laws of 1890, providing that all motions, demurrers, applications and other matters not involving a trial upon the issue of fact in any civil or criminal action, or special proceeding pending in any of the district courts, might be heard and determined by the judge of such court in vacation, as well as by the court in term time at any place in his district. One purpose of the Act of 1895, evidently was to empower the judge, by consent of the parties, to try any case, not requiring a jury, at other times than during the regular terms, and to provide that his judgment upon such trial should be the judgment of the court and should be so entered. It was not any part of the purpose of the act to confer upon the judges any additional power to hear and determine matters not involving a trial upon issues of fact, for that was already fully conferred by the Act of 1890. But the express purpose is to declare the district courts to be open at all times for certain purposes; among them the entry of such orders as have been made or granted by the district court or any judge thereof. An order so entered would seem, without any question, to be an order entered in open court, and there appears to be no escape from the conclusion that it is as much an order of the court as any decision announced and entered in term time. We see no reason to doubt the power of the Legislature to declare the courts to be open at all times, and having done so, the result mentioned seems to follow. Of course it does not follow that all of such orders are appealable directly to this court, as it is only final orders which we are empowered to review. Neither does it follow, we think, that the district court loses its power to reverse, vacate, or modify such orders in term time at a succeeding term if the case is then still pending before it. The Legislature might have provided no doubt, there being no constitutional prohibition, that the regular terms of the courts should be continuous and the courts...