Burgess v. Lasby

• Decision Date: 26 March 1932
• Docket Number: No. 6848.,6848.
• Citation: 91 Mont. 482
• Parties: BURGESS v. LASBY et al.
• Court: Montana Supreme Court

91 Mont. 482

BURGESS

v.LASBY et al.

No. 6848.

Supreme Court of Montana.

Jan. 7, 1932.

Rehearing Denied March 1, 1932.

Supplemental Petition for Rehearing Denied March 26, 1932.

Appeal from District Court, Broadwater County; C. W. Pomeroy, Presiding Judge.

Suit by Charles N. Burgess against Marie Lasby and another. From an order denying a motion to set aside an order appointing a receiver, defendants appeal.

Affirmed.

See, also, 88 Mont. 49, 289 P. 1028.

Frank T. Hooks, of Townsend, and J. R. Wine, of Helena, for appellants.

E. H. Goodman, of Townsend, and Smith, Mahan & Smith, of Helena, for respondent.

FORD, J.

This is an appeal from an order denying defendants' motion to vacate and set aside an order appointing a receiver.

The record discloses that on January 18, 1924, plaintiff filed his complaint for the foreclosure of a mortgage upon lands in Broadwater county, and prayed, among other things, for the appointment of a receiver to take possession of the premises and hold the same until the sale under judgment of foreclosure and to account to plaintiff for the rents, issues, and profits of the premises. Summons was issued and served on the same day. On February 6, defendants interposed a general demurrer to the complaint. On February 13, the following minute entry was made: “Plaintiff's motion for the appointment of a receiver set for hearing on February 14, 1924, at 10 o'clock A. M.” The minute entry of February 14 reads: “Plaintiff's motion for the appointment of a receiver this day submitted to court and by court granted.” The following entry appears in the register of actions: “Filed February 14, 1924, Order appointing Receiver.” On February 18, Chris Bliler made and filed his bond as receiver, and thereafter, on February 23, filed his oath of office, and since that date has acted as receiver of the property involved, and from the operations thereof has accumulated a fund of approximately $6,000, which is now in his hands and subject to the order of the court.

Thereafter the cause was brought to issue and came on for trial on December 9, 1924. From a judgment for defendants, plaintiff appealed to this court, and the judgment was reversed. Burgess v. Lasby, 76 Mont. 457, 248 P. 192.

On September 25, 1930, defendants filed their motion to vacate and set aside the order appointing a receiver; the grounds specified in the motion questioned the jurisdiction of the court to appoint a receiver and were founded upon the fact that no application for the appointment was made and filed; that there was not any showing made by plaintiff justifying such appointment, and that defendants were not served with notice of the application or notice thereof.

The motion came on for hearing before the Honorable Charles W. Pomeroy, judge of the Eleventh judicial district, and the order appealed from was made and entered. After the transcript on appeal had been filed in this court, plaintiff filed a motion, accompanied by the original order appointing the receiver, dated February 14, 1924, asking that such order be by the court considered in the determination of the appeal. There is attached to the original order an affidavit by the clerk of the district court which recites that the attached order “is the original order appointing a receiver in said cause; that the name ‘William L. Ford’ signed thereto is the true and original signature of Honorable William L. Ford, the judge of said court; that this affiant was the duly elected, qualified and acting clerk of said court at the date said order bears, and has been ever since. That said order appointing a receiver is the same order referred to in the Register of Actions in said cause found at page 17 of the transcript on appeal from the order of Judge Pomeroy, refusing to vacate and set aside the said order appointing a receiver, and said entry in said Register of Actions, to-wit: ‘Order appointing Receiver,’ has reference to the original order which is hereto attached. That to the best of affiant's knowledge and belief said order was taken from the files of said court immediately after it was signed and filed, and before it could be recorded, by some person to this affiant unknown, and was not available at the hearing before Judge Pomeroy for that reason; that at the time of said hearing this affiant did not know the whereabouts of said original order, and never did know where it was until on or about the 5th day of May, 1931, when he received the attached letter marked Exhibit B and signed ‘Walsh & Scallon, D. O. B.,’ from Miss O'Brien, who is a clerk and stenographer in the office of William Scallon, one of the attorneys for the defendants herein; that said original order appointing a receiver was returned in said letter from Miss O'Brien and was thereupon immediately recorded by this affiant as shown by the endorsement thereon.”

Defendants have filed a motion to strike plaintiff's motion, together with the original order and the clerk's affidavit, upon the ground that the original order is not a part of the record on appeal and was not presented to, or considered by, the lower court in making the order appealed from.

The order in question recites: “This matter coming on regularly to be heard upon notice this 14th day of Feb., 1924, at 10 o'clock A. M., upon plaintiff's application for the appointment of a receiver to take charge of the premises described in the complaint herein. *** E. H. Goodman, Esq. and John A. Matthews, Esq. appearing for plaintiff, and Frank T. Hooks, Esq. of counsel for defendants, appearing for defendants, and it satisfactorilyappearing to the court from the complaint on file herein and the showing made in open court on said hearing, that the said premises have been abandoned by the defendants, *** and is in danger of waste and depreciation and that the said premises will, under present conditions, probably not bring sufficient on sale thereof to satisfy the lien of plaintiff against the same, *** and that it is necessary that, at this time, a receiver be appointed to take charge of the said premises pending the final settlement of this case. Now Therefore, it is hereby ordered, adjudged and decreed that Chris Bliler, a fit and proper person be and he is hereby appointed receiver of the said premises and all thereof during the pendency of this action to take charge of the said premises and care for the same, with power and authority to rent the said premises and secure therefrom such rents, issues and profits as may be secured. ***”

The record discloses that the court had jurisdiction over the defendants and the subject-matter of the action, and the original order appointing the receiver shows that the statutory provisions relating to the appointment of receivers were complied with, and from the record we cannot say that there was not full compliance with all statutory requirements.

If, then, the original order may properly be considered by us, the order appealed from must be affirmed.

We agree with defendants' counsel that “this case is without parallel in Montana jurisprudence. Many questions involving the law applicable to receivers have been presented to this court, but in none of them is there a situation presented like that presented here.” Indeed, a careful search of the authorities fails to disclose a case presenting facts at all similar to those here involved.

“Numerous decisions support the doctrine that evidence dehors the record, whether by affidavit or otherwise, will not be entertained by the appellate court to supply deficiencies in the record.” 4 C. J. 558. This doctrine has been recognized and applied by this court. Newell v. Whitwell, 16 Mont. 243, 40 P. 866;Davis v. Bryant, 62 Mont. 352, 205 P. 209;Roecher v. Commercial National Bank, 87 Mont. 570, 289 P. 388;Griffith v. Montana W. G. Ass'n, 75 Mont. 466, 244 P. 277. However, the rule is not of universal application. It has been held that evidence dehors the record is competent to show that the question involved has become moot [State ex rel. Rankin v. Martin, 65 Mont. 323, 211 P. 210;State ex rel. O'Grady v. District Court, 58 Mont. 695, 198 P. 1117;Keely v. Ophir Hill Consol. Mining Co. (C. C. A.) 169 F. 601;Schevenell v. Blackwood (C. C. A.) 35 F.(2d) 421]; to show want of equity (Corey v. Sunburst Oil & Gas Co., 72 Mont. 383, 233 P. 909); that pending an appeal the parties settled their controversies (Carlson v. City of Helena, 38 Mont. 581, 101 P. 163;State ex rel. Begeman v. Napton, 10 Mont. 369, 25 P. 1045;Snell v. Welch, 28 Mont. 482, 72 P. 988;In re Black's Estate, 32 Mont. 51, 79 P. 554;State ex rel. Brass v. Horn, 36 Mont. 418, 93 P. 351); that the action is collusive (Carlson v. City of Helena, supra; Lord v. Veazie, 8 How. 251, 12 L. Ed. 1067;Hatfield v. King, 184 U. S. 162, 22 S.Ct. 477, 46 L. Ed. 481); the fictitious character of the suit (Ward v. Alsup, 100 Tenn. 619, 46 S. W. 573); the entry of the appeal (Garrison v. Parsons, 41 Fla. 143, 25 So. 336); the circumstances under which an appeal was dismissed (Titley v. Kaehler, 9 Ill. App. 537); the right to appeal in forma pauperis (Kalklosh v. Bunting, 40 Tex. Civ. App. 233, 88 S. W. 389); the proper serving, signing, and settlement of the case-made (Roser v. Fourth National Bank, 56 Kan. 129, 42 P. 341;Jones v. Kellogg, 51 Kan. 263, 33 P. 997, 37 Am. St. Rep. 278); to show circumstances occurring subsequently to the appeal, which materially affect the rights involved (Sewell v. Johnson, 165 Cal. 762, 134 P. 704, 706, Ann. Cas. 1915B, 645); to sustain, though not for reversing, a verdict or decision otherwise unimpeachable (Petersen v. City of New York, 133 Misc. Rep. 720, 233 N. Y. S. 295;People v. Flack, 216 N. Y. 123, 110 N. E. 167).

In a suit for infringement of a copyright the court held that it might note aliunde the record the fact that pending the appeal the statutory notice had been given to create compulsory license, and that it had been accepted and royalties paid. Ricordi Co. v. Columbia...