Anderson v. Riddle
| Citation | 68 P. 829,10 Wyo. 277 |
| Parties | ANDERSON v. RIDDLE |
| Decision Date | 29 April 1902 |
| Court | United States State Supreme Court of Wyoming |
Error to the District Court, Sweetwater County, HON. RICHARD H SCOTT, Judge of First District, presiding.
Jennie Anderson brought this suit against Heriot Riddle to recover a certain sum of money alleged to have been collected by the defendant from sundry persons occupying certain premises as tenants of one Charles H. Bussey in the Town of Rock Springs. Plaintiff alleged that defendant had collected the same without authority of law, and that on December 11, 1897, the said Bussey, for a valuable consideration, assigned the said money and the right to receive the same from the defendant to the plaintiff. That notice of the assignment had been given and demand had been made for the amount alleged to have been so collected.
The defendant, by his answer, justified his collection of the money under his appointment as receiver of the rents and profits of the property in a cause brought by one Hannah Matthews for the foreclosure of a mortgage held by her on the property, and denied that any part belonged to Bussey. He further alleged that one John H. Anderson was a party to that suit, holding a first mortgage on the property, and set forth certain proceedings therein affecting said Anderson, whereby he had recognized the receivership. He also showed by the answer a subsequent order approving his accounts as receiver and confirming the original appointment. It was charged that the plaintiff was not the real party in interest, but that John H. Anderson was such party, and that the pretended assignment was made in the latter's interest, for the purpose of defrauding said Hannah Matthews of the income from the property under the receivership.
By reply the plaintiff denied the allegations of the answer as to her interest, and denied the validity of defendant's appointment as receiver, alleging that the appointment was made when no case was pending in the court, and without jurisdiction.
Judgment was rendered for defendant, and plaintiff prosecuted error.
Affirmed.
E. E Enterline and D. A. Reavill, for plaintiff in error.
An action for money had and received is always maintainable whenever defendant receives money from plaintiff or third person which in equity and good conscience he ought not to retain. (Pierson v. Furmann, 1 Col. App., 187; Fulton v. Ins. Co., 21 N. Y. S., 470; Mason v Prendergast, 120 N.Y. 536; Walker v. Conant (Mich.), 31 N. W., 786; Hindmarch v. Hoffman, 127 Pa. 284; Barnett v. Warren (Ala.), 2 So., 457; Brand Co. v. Williams (Minn.), 13 N. W., 42; Finch v. Park, 12 S. D., 63.)
The defendant used the plaintiff as a witness in his behalf. Over repeated objections to questions propounded by defendant's counsel, and by the court, she was compelled to testify in detail as to the transaction between herself and Bussey relative to the transfer of the real estate and assignment of the rents, and to the fact that at the time she purchased she knew that the foreclosure action was pending, and that her brother had a mortgage on the real estate, concerning which there was litigation.
The evidence was not competent or material. The defendant pleaded that the real estate was deeded to plaintiff, and the plaintiff admitted that such was the fact in her reply. The court would not have been authorized to find against the admission in the pleadings. (Schlessinger v. Cook, 9 Wyo., 256.)
Again, the evidence could not have been competent or material on the theory that the plaintiff was not the real party in interest. She acquired whatever rights Bussey and wife, or either, had to the rents and profits of the real estate and to the realty. It is admitted that Bussey is the owner of the real estate, and was at the time stated in the petition, and it is admitted that the plaintiff owned the realty at the time alleged in her second petition, and that the moneys were owing to her, because it is not denied. There is no doubt as to the assignability of the right of action. (Bliss on Code Pl., Secs. 47, 57; Pomeroy Code Rem., Secs. 125, 126 et seq., 147-151.)
Even if Bussey had retained an interest in the fund, which it is not claimed, it does not concern the defendant. (Bliss on Code Pl., Sec. 51.) The admission of immaterial testimony is error. (Rock Springs National Bank v. Luman, 5 Wyo., 159; Marsteller v. Leavitt (Cal.), 62 P. 384; Parke v. Boulware (Idaho), 63 P. 1045.)
We also insist that the defendant did not plead sufficient facts to show that the plaintiff was not the real party in interest. The mere allegation that the plaintiff is not the real party in interest is not sufficient to raise the issue. (Pom. on Code Rem., Secs. 132 et seq. and 711; Philips on Code Pl., Secs. 343, 383.)
But, conceding, for the sake of argument, that the question was properly raised by the pleadings, and evidence was properly admitted in support of the issue, the proof is over-whelming that an adequate consideration was paid Bussey.
The testimony of the plaintiff and her brother conclusively shows that their father, who had $ 1,000 invested in the mortgage given by Bussey to plaintiff's brother, John H. Anderson, directed the latter to give $ 1,000 to plaintiff. John did this by giving Bussey credit for $ 1,000 on December 11th, 1897, on the $ 4,000 note secured by the said mortgage, and Bussey, for that consideration, deeded the realty and assigned the back rents to plaintiff.
Over objection that the same was incompetent, irrelevant and immaterial, the defendant was permitted to introduce in evidence certain pleadings, papers, files, orders of court. The object of the offer no doubt was to prove that the defendant was appointed receiver in said cause, and that he was holding the moneys sought to be recovered by the plaintiff by virtue of said appointment.
The order made on January 30th, 1897, was made before any summons had issued in the cause subsequently commenced, without notice of any kind on the defendants in that suit, and without either of the defendants ever having entered any appearance. Under our statutes a receiver may be appointed inter alia in an action to foreclose a mortgage where the property is probably insufficient to pay the mortgage indebtedness. (Rev. Stats., Sec. 4054.) An action must be commenced by the filing of a petition and the issuance of a summons. (Rev. Stats., Sec. 3507.) Jurisdiction of the court does not attach until the petition is filed and the summons issued. (Whit. Ann. Code, Sec. 5035; Seibert v. Switzer, 35 O. St., 661; Bazell v. Belcher, 31 O. St., 572.)
An appointment of a receiver bears a similar relation to courts of equity that proceedings in attachment bear to courts of law, and both are proceedings merely ancillary or auxiliary to the main action. (R. R. Co. v. Sloan, 31 O. St., 1.) And the Supreme Court of this State held that jurisdiction in a replevin suit commenced in the District Court attached after the filing of a petition and the issuance of a summons. (Clendenning v. Guise, 8 Wyo. 91.)
It is the universal rule that before a receiver can be appointed where it is proper that an appointment can be made, there must be an action--one commenced and pending--and an order appointing a receiver before the commencement of the suit is null and void.
It is an elementary principle that a void order is subject to collateral attack, and requires no direct proceeding for its reversal, and as the order made on January 30th, 1897, is absolutely void, the plaintiff had a right to attack it in the suits instituted by her. And this has been applied to the void appointment of receivers. (Guy v. Doak, supra; Thurber v. Miller (S. D.), 75 N. W., 900; State v. Sup'r Ct., 7 Wash., 77; Whitney v. Bank, 71 Miss. 1009; McGee v. Hays, supra; Baker v. Harney, supra.)
Neither the order made January 29th, 1898, denying the application of John H. Anderson to vacate the order of January 30th, 1897, nor the order made upon application of Riddle, on March 8th, 1898, could vitalize the original order, nor make the evidence offered competent. (Black on Judgments, Sec. 278; Vanfleet's Collateral Attack, Secs. 14, 16; Frankel v. Satterfield, supra; Seibert v. Switzer, supra; Thurber v. Miller, supra; Smith v. Los Angeles (Cal.), 34 P. 242; Anderson v. Matthews, 8 Wyo. 307.)
The order made January 30th, 1897, would not be competent to prove that Bussey was enjoined from assigning the rents or collecting them. It was void, and, besides, as shown by the offer, no undertaking was ever given in injunction, nor does the order provide for one. No injunction, unless by special statute, operates until an undertaking is given and approved, in a sum fixed by the court. (Rev. Stats., Secs. 4043, 4046.) And there is no contempt in disobeying a void order. (State v. Dist. Court (Mont.), 53 P. 272.)
The order of confirmation is of no force, for the reason alone that the application was not made by one of the parties to the action. Riddle was not a party to that suit, and, of course,...
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