Exchange Nat. Bank v. Northern Idaho Pine Lumber Co., Ltd.

• Decision Date: 30 September 1913
• Parties: EXCHANGE NATIONAL BANK, Appellant, v. NORTHERN IDAHO PINE LUMBER COMPANY, LTD., Respondent
• Court: Idaho Supreme Court

135 P. 747

24 Idaho 671

EXCHANGE NATIONAL BANK, Appellant, v. NORTHERN IDAHO PINE LUMBER COMPANY, LTD., Respondent

Supreme Court of Idaho

September 30, 1913

RECEIVER-APPOINTMENT-APPOINTMENT BY DISTRICT JUDGE-ORDER WHEN FILED-WHEN TITLE IS VESTED IN RECEIVER.

1. Sec 4880, Rev. Codes, provides: "Every direction of a court or judge, made or entered in writing, not included in a judgment, is denominated an order. An application for an order is a motion."

2. Sec 4881, Rev. Codes, provides: "Motions must be made in the county in which the action is pending, or in any county in the same judicial district. Orders made out of court may be made by the judge of the court in any part of the state."

3. Where a motion is made by filing the same with the clerk of the district court of Bonner county, alleging facts sufficient to show cause of action for the appointment of a receiver, and is filed during the morning of the 24th of August, 1911, Bonner county being a county in the same judicial district in which the action was pending for the appointment of a receiver, and an order was made by the court at chambers by the judge signing the order, the fact that it was signed by the judge in Bonner county, one of the counties in the district over which the judge presided, and the fact that it was not filed by the clerk on the same day, would not affect the order or power of the court to take possession of the property by the signing of the order.

4 Secs. 4880 and 4881, Rev. Codes, provide that every direction of a court or judge made or entered in writing and not included in a judgment is denominated an order, and that an application for an order is a motion, and motions must be made in the county in which the action is pending or any county in the same judicial district. Orders made out of court and at chambers may be made by the judge of the court in any part of the state. In the present case Judge Flynn had the power and authority to make the order for the appointment of a receiver upon proper application in a cause pending in a county within his district, and when he made the order by signing it, it became effective, and the order signed by the judge appointing a receiver vested title in the receiver, and the court by reason of the appointment went into possession of the property of the Northern Idaho Pine Lumber Company and by reason of such appointment the property of the Northern Idaho Pine Lumber Company was not subject to attachment, and the court did not err in making such appointment.

5. Held, in this case, that the trial court did not err in denying a motion to pay the money realized by the sheriff and receiver to the Exchange National Bank of Coeur d'Alene.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. N. Dunn, Judge.

A motion for appointment of receiver. Affirmed.

Judgment of the trial court affirmed. Costs awarded to respondent.

Whitla & Nelson, for Appellant.

If the order did not have to be entered or filed before it became effective, then counsel for respondent could have kept the order indefinitely and enjoyed all the fruits of the order, at the same time not allowing the objecting parties who were injured thereby the right of appeal therefrom. (State ex rel. Morgan v. Lamm, 9 S.D. 418, 69 N.W. 592.)

Before any order or judgment can be appealed from it must be spread upon the records as permanent and incontestable evidence of the action of the court. (Winstead v. Evans (Tex. Civ. App.), 33 S.W. 580; Burns v. Skelton, 29 Tex. Civ. App. 453, 68 S.W. 527; Coe v. Erb, 59 Ohio St. 259, 69 Am. St. 764, 52 N.E. 640; Miller v. Wolf, 63 Iowa 233, 18 N.W. 889.)

The word "made" in this statute should be construed the same as where it is stated that a person "made" a deed or "made" any other instrument, which includes not only the formal act of signing the instrument and writing it out, but also includes the full execution and delivery thereof. (Hazelet v. Holt County, 51 Neb. 716, 71 N.W. 717.)

"Where an order is granted upon notice of motion to the first party, it does not become complete or effective for any purpose until entered." (29 Cyc. 1515.)

We have not been able to find a decision by any court holding that an order which was made ex parte without notice would affect third persons who obtained rights before that order became a matter of public record. (In re Schuyler's Steam Towboat Co., 136 N.Y. 169, 32 N.E. 623, 20 L. R. A. 391; Wilcox v. National Shoe & Leather Bank, 67 A.D. 466, 73 N.Y.S. 900; Vilas v. Page, 106 N.Y. 455, 13 N.E. 743; Hastings v. Improvement Co., 46 A.D. 609, 61 N.Y.S. 998.)

In a number of other cases where the exact date of the orders was not the matter directly in controversy, courts have said that the receiver took title when the decrees and orders appointing him were entered. (Conn. River Banking Co. v. Rockbridge Co., 73 F. 709; In re Perry Aldrich Co., 165 F. 249.)

Elder & Elder and C. H. Potts, for Respondent.

"An order made in pursuance of a decision on a motion relates back and operates as of the date when the decision was made." (29 Cyc. 1521; citing May v. Cooper, 24 Hun (N. Y.), 7.)

An order made by a judge at chambers for the appointment of a receiver is the same as if made by the court. It is made in writing and is complete when signed. The filing or entry of the order in the records of the court by the clerk is purely a ministerial or clerical act, and cannot affect the validity or scope of the order made. (Sec. 3890, Rev. Codes; Niles v. Edwards, 95 Cal. 41, 30 P. 134; Winstead v. Evans (Tex. Civ. App.), 33 S.W. 580.)

"One who has no lien when a receiver is appointed, although the mere right to acquire one may then exist, cannot proceed for that purpose by independent action after the appointment of the receiver and be given preference over other creditors." (34 Cyc. 199.)

"The qualified title of a receiver to the property he is directed to take and hold relates back to the time of his appointment, and actual seizure by him is not necessary to cut off rights which attach only after the order of appointment." (Horn v. Pere Marquette R. Co., 151 F. 626; Connecticut River Banking Co. v. Rockbridge Co., 73 F. 709; Temple v. Glasgow, 80 F. 441, 25 C. C. A. 540; High on Receivers, sec. 136; Beach on Receivers, sec. 217; Gluck & Becker on Receivers, sec. 40; Pope v. Ames, 20 Ore. 199, 23 Am. St. 119, 25 P. 393, 10 L. R. A. 779; Maynard v. Bond, 67 Mo. 315; Texas Trunk Ry. Co. v. Lewis, 81 Tex. 1, 26 Am. St. 776, 16 S.W. 647; Ardmore Nat. Bk. v. Briggs M. & S. Co., 20 Okla. 427, 129 Am. St. 747, 94 P. 533, 23 L. R. A., N. S., 1074, 16 Ann. Cas. 133; In re Christian Jensen Co., 128 N.Y. 550, 28 N.E. 665; Atlas Bank v. Mahant Bank, 23 Pick. (40 Mass.) 480; Fogg v. Supreme Lodge etc., 159 Mass. 9, 33 N.E. 692.)

An attachment on property made after the court took charge of it in insolvency proceedings will give no lien, though the receiver had not taken actual manual caption of it. (McDonald v. Charleston C. & C. Co., 93 Tenn. 281, 24 S.W. 252.)

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

On the evening of the 23d of August, 1911, William Wittenberg filed an action in the district court of the eighth judicial district for Kootenai county, about 4:55 P. M. The action was based upon a promissory note. Summons was issued. After the complaint had been filed and the summons was issued the attorney for plaintiff withdrew the papers from the files and carried them to Sandpoint, Bonner county, which is included in the eighth judicial district, where Judge Flynn, one of the judges of said district, was at that time, and Judge Flynn at his chambers, between the hours of 10 and 11 A. M. of the 24th of August, signed an order appointing a receiver for the Northern Idaho Pine Lumber Company. On August 24th the plaintiff in this action filed its action against the defendants, which was upon a promissory note given by the defendant, Northern Idaho Pine Lumber Company, to Harry A. Richards, and by him sold and transferred before due to the plaintiff. This complaint was filed about 2:30 P. M., August 24th, and at this same time summons was issued and a writ of attachment was duly issued and placed in the hands of the sheriff, who immediately proceeded to attach the property of the defendant and did attach the property and took possession of the same, and the property was finally disposed of upon the stipulation of the parties, and the trial court found that the plaintiff was entitled to recover from the defendants in the sum of $ 5,851.87, and...