Barber v. Barber

• Decision Date: 08 February 1960
• Docket Number: No. 2905,2905
• Citation: 349 P.2d 198
• Parties: Burton O. BARBER, Appellant (Defendant below), v. Helen O. BARBER, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 198

349 P.2d 198

Burton O. BARBER, Appellant (Defendant below), v. Helen O. BARBER, Appellee (Plaintiff below).

No. 2905.

Supreme Court of Wyoming.

Feb. 8, 1960.

Maurer & Garst, Douglas, for appellant.

J. B. Sullivan, Douglas, for appellee.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

PARKER, Justice.

On March 6, 1958, plaintiff was granted a decree of divorce from the defendant by the District Court of Converse County. The decree recited that the parties had been unable to agree as to the division of the property accumulated by them during their marriage; allocated some personal effects to the parties; described in detail the remaining property; ¹ and appointed two joint receivers, requiring that they 'appraise the same and proceed to sell said property for the highest and best prices obtainable * * * either at public or private sale.' On March 31 the receivers filed a 'First Account and Report of Receivers' in which they recited the inventorying and disposition of certain property, the retention of other property proposed for distribution to the parties, and requested the court's approval, confirmation, and further direction.

On April 8 defendant filed 'Protest Against Confirmation' in which he alleged various irregularities and improprieties regarding the actions of the receivers, praying that the sales of the property be not confirmed, and that the property be sold to the highest and best bidder. On April 24 the receivers filed 'Answer to Protest Against Confirmation.' Thereafter on May 20 the presiding judge without conducting a hearing upon the protest and answer entered an order approving and confirming certain of the sales; directing that the residence and furniture be sold to plaintiff and the oil royalties to defendant at the appraised values; and authorizing disposition of certain other property as the receivers in their discretion deemed best. On June 11 defendant filed 'Exception to Order and Protest.' On June 27 the receivers filed 'Final Account and Report of Receivers.' On August 4 the presiding judge conducted a hearing on the propriety of the sales and the division of property. On September 5 the receivers filed 'Supplemental Account to Final Report of Receivers.' On September 17 the court entered an order reciting the hearing of August 4 as a basis for approving the 'Final Account and Report of Receivers,' directed payment of costs as listed in the final account and supplemental account, and directed the discharge of the receivers upon completion of the payments. Thereafter, on October 23, the receivers filed 'Supplemental Final Account and Report of Receivers.' On November 19 the court approved the supplemental final account and report of the receivers.

The present appeal is taken from the final order which in effect confirmed the manner in which, and the price for which, the property accumulated by the parties was sold and distributed. The burden of defendant's protest is centered around the following claimed irregularities in the sales of the property:

(1) The store in Glenrock was sold privately to plaintiff at a compromise price without being offered to anyone else.

(2) The cattle were improperly sold to an appraiser at a price less than could have been obtained for them.

(3) The furnished residence in Glenrock should have been offered at public sale rather than to plaintiff at the appraised price.

(4) The Ford automobile was sold for less than the appraised value without having been offered to persons other than the plaintiff.

In the oral argument before this court, counsel for defendant upon interrogation indicated that because of transfers to third parties the alleged irregularities in the sales of the property could not be expediently remedied except as to the residence. Although the propriety of the entire proceedings must be discussed, this opinion will address itself solely to relief on the one aspect. A court will not consider contentions which have been waived. Fox v. Fox, 75 Wyo. 390, 296 P.2d 252; Goldberg v. Miller, 54 Wyo. 485, 93 P.2d 947, 96 P.2d 570.

The decree which appointed the appraisers, described the property to be administered by them, and directed its sale, does not recite the authority under which the action was taken, but we presume that this was under §§ 1-990-1-999, W.S.1957. If so, the powers of the receivers were limited by § 1-993 to the taking of possession and control of the property, making transfers, and doing such acts as the court authorized.

Perhaps we should first discuss the arguments presented by the parties. Defendant implies that the sale of the cattle was improper because an appraiser purchased them. We doubt if the authorities justify this view. Although it is universally agreed that a person participating in the handling of a judicial sale should not be a purchaser, ² it has been held that the determining factor is the appraisal with the view to becoming a purchaser. This matter should not be passed, however, without our observing that purchase by an appraiser is contrary to the spirit of the law, is likely to lead to misunderstanding, and should be avoided both by participants and the court in charge of the sale.

Defendant argues that part of the property was divided rather than sold, that even the portions put up for sale did not go to the highest and best bidders, and that in general there was a careless administration of the entire transaction. He quotes authorities saying that a receiver is a ministerial officer of the court, should represent both parties, and that it is the duty of the court to supervise and direct its receivers to see that the property is handled to the best interests of the parties concerned. He urges further that there was abuse of discretion in the approval by the court of the receivers' activities.

Plaintiff responds that the receivers acted in a competent, conscientious manner as officers of the court, and that from a practical standpoint they did what was to the best interests of the parties. Counsel relies upon statements in the text of 53 C.J. pp. 213, 214 (75 C.J.S. Receivers § 243), that the scope of a hearing upon a report of sale by a receiver is confined to the face of the proceedings (except for fraud) and that a court will disturb a sale or...