Eagle Min. & Imp. Co. v. Lund
| Decision Date | 31 August 1910 |
| Citation | 113 P. 840,15 N.M. 696,1910 -NMSC- 064 |
| Parties | EAGLE MINING & IMPROVEMENT CO. v. LUND. |
| Court | New Mexico Supreme Court |
Rehearing Denied Jan. 5, 1911.
Syllabus by the Court.
Where the plaintiff in error files a transcript of the record, but not, as required by section 20, c. 57, Laws 1907, 10 days before the return day of the writ, and also files assignments of error, but not before the return day of such writ, a motion to dismiss the writ of error on those grounds, not made until after such filing, will be denied. Armijo v Abeytia, 5 N. M. 583, 25 P. 777.
A decree granting an injunction and appointing a receiver for an insolvent corporation under the provisions of sections 72 and 73 of chapter 79 of the Laws of 1907 is a final decree within the terms of the organic act relating to appeals and writs of error.
A decree appointing a receiver to take possession of all and every the estate, real, personal, and mixed, of an insolvent corporation, with power to collect and take possession of all the properties and assets of the corporation, and to make an inventory of the same and to abide the further orders of the court with relation thereto considered by itself, there having been no injunction previously granted by the court as provided in section 72 of chapter 79 of the Laws of 1905, is properly classified as an interlocutory order or decree, and not subject to appeal or writ of error.
Error to District Court, Chaves County; before Justice William H Pope.
Action by Robert E. Lund against the Eagle Mining & Improvement Company. Decree for plaintiff, and defendant brings error. Dismissed.
Geo. W Prichard, for plaintiff in error.
Robert E. Lund, for defendant in error.
WRIGHT J. (after stating the facts as above).
1. Before taking up the consideration of the other features of this case, it is necessary to dispose of the motion of defendant in error to dismiss the writ of error for failure to file transcript of the record and assignments of error within the time required by law. Defendant herein on January 5, 1910, filed his motion to dismiss the writ of error, as above stated. An examination of the files in this case discloses that plaintiff in error had filed its transcript of record and assignments of error, and thereby cured its default prior to the filing of motion to dismiss for such default. This motion is therefore within the rule stated in Armijo v. Abeytia, 5 N. M. 533, 25 P. 777, and must therefore be overruled.
2. The second contention of the defendant in error is that the decree appointing a receiver, from which the writ of error is taken, is not a final decree, and therefore not subject to appeal or writ of error. The question of the finality of a decree granting the injunction and appointing a receiver as provided in sections 72 and 73 of chapter 79 of the Laws of 1905 had been heretofore considered by the court at this term in the case of Sacramento Valley Irrigation Company v Lee, 113 P. 834, in which a decree granting the injunction as provided in the statute and appointing a receiver with the powers prescribed in the statute was held to be final and subject to appeal or writ of error, in the case at bar. However, the facts differ from those in the Sacramento Valley Irrigation Company v. Lee, in that at no time was the injunction authorized by section 72 of said chapter 79 issued by the court as prescribed in such statute. The only injunction granted at any time, as appears from the record, was the preliminary injunction granted upon the return of the order to show cause, restraining the corporation from disposing of its personal property until the further order of the court. It is true that subsequent to the issuing of this preliminary injunction the court by its findings indicated that a decree granting the relief prayed in the complaint might be drawn and submitted to the court for signature, but no such decree was drawn or signed. The decree appointing such receiver is in the usual form of such decrees appointing receivers to conserve property pending final disposition of the case in chief under orders from the court.
Sections 72 and 73 of chapter 79 of the Laws of 1905 are as follows:
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