Bateman v. Gitts

• Decision Date: 10 April 1913
• Citation: 133 P. 969,17 N.M. 619
• Parties: BATEMAN ET AL.v.GITTS ET AL.
• Court: New Mexico Supreme Court

17 N.M. 619

133 P. 969

BATEMAN ET AL.

v.GITTS ET AL.

Supreme Court of New Mexico.

April 10, 1913.Rehearing Denied July 23, 1913.

Syllabus by the Court.

A decree, which provides that A. shall have a first lien upon certain shares of stock of a bank, and that B. shall have a second lien upon such stock, but which requires A. to comply with certain conditions imposed within 60 days, and provides that in the event of A.'s failure to so comply B. shall have a first lien, and A.'s lien shall be inferior and second to B.'s lien, and which decree further provides for the sale of said collateral, by a receiver appointed, under further orders of the court to be made, and directs said receiver to hold the proceeds so realized “subject to the further orders of the court,” is not a final decree.

Where further action of the court is necessary, in a cause, to give completely the relief contemplated by the court, the decree upon which the question arises is interlocutory, and not final.

The trial court has the right, upon entering final judgment in a cause, to disregard the requirements and conditions imposed in an interlocutory decree theretofore entered.

Appeal from District Court, Chaves County; McClure, Judge.

Action by Ursinus Sidney Bateman and others against Julius J. Gitts and others. From a decree for defendants, plaintiffs appeal. Affirmed.

A decree which provides that A shall have a first lien upon certain shares of stock of a bank, and that B shall have a second lien upon such stock, but which requires A to comply with certain conditions imposed, within sixty days, and provides that in the event of A's failure to so comply B shall have a first lien and A's lien shall be inferior and second to B's lien; and which decree further provides for the sale of said collateral, by a receiver appointed, under further orders of the court to be made, and directs said receiver to hold the proceeds so realized “subject to the further orders of the court,” is not a final decree.

U. S. Bateman, of Roswell, for appellants.

Nisbet & Nisbet, of Roswell, for appellees.

ROBERTS, C. J.

[1] On the 25th day of October, 1909, the district court of Chaves county, N. M., entered a decree in this case by which the appellee was given a first lien on 16 shares of stock of the American National Bank of Roswell, owned by one Julius J. Gitts, and the intervener, the American National Bank of Roswell, was given a lien on said shares of stock, which lien, however, was declared to be a second lien to the lien of the First National Bank of Marshall, Minn. The decree provided further as follows: “But that said lien given to said First National Bank of Marshall is upon the condition that, within 60 days from date hereof, it causes said note now held by said Weaver to be indorsed, transferred, and delivered for collection to the receiver hereinafter named, and that said bank within said time also indorse and deliver to said receiver said two certificates of stock now in its possession, and that within said time said bank also truly reports in writing, to be filed in this action, what collateral, if any, other than said certificates of stock, it has to protect it against the payment of said renewal note, and also what became of said insurance policies and the amounts thereof, by what companies issued, and to whose favor the same were issued; (d) that in the event of the failure of said First National Bank of Marshall to comply with any one or more of the provisions above mentioned within the time above mentioned, unless extension thereof be granted by this court upon written applications by said bank therefor, said lien given to said bank shall be inferior and second to the lien hereinbefore given to the intervener; (e) that Alexander J. Nisbett, Esq., of Roswell, Chaves county, N. M., is hereby appointed receiver of this court, and is hereby authorized, empowered and directed to take possession of said note now held by said Weaver upon the same being transferred and indorsed to him, and also to take possession of said certificate of stock and all other collateral, if any, held by the First National Bank of Marshall to protect it as guarantor of said renewal note, including said two insurance policies; and said receiver is hereby empowered and directed to proceed to collect said note by suit or otherwise and to sell said shares of stock and other collateral, including said two insurance policies, under the orders of the court hereafter to be made, and to hold the proceeds derived from such collection and sale subject to the further orders of the court.”

From this decree an appeal was taken to the Supreme Court of the then territory of New Mexico, and the judgment of the lower court was affirmed in an opinion which will be found reported in 16 N. M. 441, 120 Pac. 307. Thereafter, and upon receipt of the mandate of the Supreme Court, on the 31st day of July, 1912, the district court of Chaves county entered the following final decree: “This cause coming on for further hearing herein and for affirmation on the final decree herein upon the judgment of the Supreme Court on affirmation in all things of the judgment of this court made herein on October 19, 1909, the court being fully advised in the premises and having heretofore, on February 19, 1912, ordered the 16 shares of the capital stock of the Roswell National Bank held by Alexander J. Nisbett, special master in this cause, sold at private sale, and the same having been so sold on said day and date to H. P. Saunders, of Roswell, N. M., for the sum of $2,800, and this court having heretofore, on October 19, 1909, duly adjudged and decreed that the First National Bank of Marshall, Minn., one of the defendants herein, and the Supreme Court herein in all things having affirmed said judgment, that said bank had a first and prior lien on said 16 shares of stock aforesaid, by reason of the same having been duly hypothecated and pledged to said First National Bank of Marshall, Minn., as security for a certain promissory note given by J. J. Gitts & Co., J. J. Gitts, Francis Gitts, Ed Gitts, Paul Gitts, and V. B. Gitts, for the sum of $5,000, and it further appearing to the court that the only and all the available proceeds and assets obtainable by said special master, and now in his hands as such master, is the sum of $2,800 aforesaid, received by him for the sale of said stock. It is therefore ordered, adjudged, and decreed by the court that the said special master pay over to the said First National Bank of Marshall, Minn., pledgee of said stock, the said sum of $2,800, and upon his filing its receipt therefor with the clerk of this court he is hereby discharged from any and all further duties herein as special master aforesaid.”

Thereafter, on the 2d day of August, 1912, the appellant filed with the clerk of the district court a motion to...