Evans State Bank v. Skeen

• Decision Date: 01 October 1917
• Citation: 30 Idaho 703,167 P. 1165
• Parties: EVANS STATE BANK, a Corporation, Respondent, v. MARGARET SKEEN, LAFAYETTE SKEEN et al., Appellants
• Court: Idaho Supreme Court

167 P. 1165

30 Idaho 703

EVANS STATE BANK, a Corporation, Respondent, v. MARGARET SKEEN, LAFAYETTE SKEEN et al., Appellants

Supreme Court of Idaho

October 1, 1917

APPEAL AND ERROR-NONAPPEALABLE ORDERS-DISMISSAL.

Neither an order appointing a receiver of mortgaged personal property, an order denying and overruling a motion to vacate and set aside the receivership, nor an order authorizing and directing the sale of the property, is a final judgment, but such orders are interlocutory and are not reviewable upon direct appeal therefrom.

APPEAL from the District Court of the Fifth Judicial District, for Power County. Hon. J. J. Guheen, Judge.

Appeal from an order appointing a receiver, an order denying and overruling a motion to vacate and set aside the receivership and an order authorizing and directing the sale of property held thereunder. Dismissed.

Appeal dismissed. Costs awarded to respondent.

Maurice M. Myers, for Appellants.

Said orders are final orders or decisions and are not appealable to this court by direct appeal. (Chemung Mining Co. v Hanley, 11 Idaho 302, 81 P. 619.)

Isaac E. McDougall and McDougall & Jones, for Respondent.

MORGAN J. Budge, C. J., and Rice, J., concur.

OPINION

MORGAN, J.

This case comes before the court upon appeal from an order appointing a receiver of mortgaged personal property, an order denying and overruling a motion to vacate and set aside the receivership and an order authorizing and directing the sale of the property. Respondent has moved for a dismissal upon the ground, among others, that the orders are not final but interlocutory, and that neither of them is reviewable upon direct appeal therefrom. Any additional facts necessary to an understanding of what will be said in disposing of this motion are to be found in Skeen v. District Court 29 Idaho 331, 158 P. 1072.

The right to appeal, in this state, is conferred by legislative authority, and if it exists it must be found in the constitution or statutes. It has been contended that all orders and decisions of district courts are made appealable by sec. 9, art. 5, of the constitution, wherein it is provided that the supreme court shall have jurisdiction to review, upon appeal, any decision of the district courts, or the judges thereof, but this section must be read and considered together with sec. 13 of the same article, directing that the legislature shall provide a proper system of appeals.

In the discharge of the duty imposed upon it by sec. 13, art. 5, of the constitution, above mentioned, the legislature, in sec. 4800, Rev. Codes, has provided: "A judgment or order, in a civil action, except when expressly made final, may be reviewed as prescribed in this Code, and not otherwise." Sec. 4807, Rev. Codes, as amended by chap. 111, Sess. Laws 1911, p. 367, and by chap. 80, Sess. Laws 1915, p. 193, designates the judgments and orders of district courts from which appeals may be taken to this court and they are: A final judgment in an action or special proceeding commenced in the court in which the same is rendered; a judgment rendered on appeal from an inferior court; a judgment rendered on an appeal from an order, decision or action of a board of county commissioners; an order granting or refusing to grant a new trial; an order granting or dissolving an injunction; an order refusing to grant or dissolve an injunction; an order dissolving or refusing to dissolve an attachment; an order granting or refusing to grant a change of place of trial; any special order made after final judgment; and an interlocutory judgment in actions for partition of real property. While other legislative enactments provide for appeals from the district courts to this court in certain cases, none of them apply to the question here under consideration.

A final judgment has been defined to be one which disposes of the subject matter of the controversy or determines the litigation between the parties on its merits. A judgment order or decree which is intermediate or incomplete and, while it settles some of the rights of the parties, leaves something remaining to be done in the adjudication of their substantial rights in the case by the court entertaining jurisdiction of the same, is interlocutory. (3 C. J. 441.) Applying these definitions to the orders here attempted to be appealed from, it will be seen at once that they are interlocutory and not final. An examination of sec. 4807, Rev. Codes, as...