Finerty v. Williams
| Decision Date | 15 March 1921 |
| Docket Number | Case Number: 9957 |
| Parties | FINERTY et al. v. WILLIAMS. |
| Court | Oklahoma Supreme Court |
¶0 1. Receivers--Courts--Statutes. Section 266, art. 13, chap. 66, Statutes 1893 of the Territory of Oklahoma and reading as follows: "A receiver may be appointed by the Supreme Court, the district court, or any judge of either, or in the absence of said judges from the county, by the probate judge"--if not put in force by section 2 of the Schedule to the Constitution, was certainly put in force in this state by being embraced in the Harris-Day Code and made to read as follows: "A receiver may be appointed by the Supreme Court, the district court, or superior court, or any judge of either, or, in the absence of said judges from the county, by the county judge"--and appears as part of section 4979, Rev. Laws 1910, as promulgated in 1913.
2. Same--Authority of Judge--Waiver of Objections--Presumptions on Appeal. Where a receiver is appointed by a county judge in a matter pending in the district court, and the record fails to show the district judge was absent from the county, but the record does show that all parties were present in person and by attorneys at the hearing appointing such receiver, no objection being made or appeal taken, held, the objection waived as against collateral attack. Held, further, that it will be presumed, as against collateral attack, that the county judge found the district judge absent from the county, and found all other matters to exist necessary to give him jurisdiction to make the appointment, and this is so, even though the record is silent.
3. Same--Powers of County Judge--Validity of Statute--Courts. The portion of section 4979, Rev. Laws 1910, granting authority to county judges, in the absence of the district judge from the county, to appoint receiver is not repugnant to the Constitution, and is valid. Held, further, that it was not the purpose of the Legislature to grant further equity powers to the county court, but only intending to confer authority on the person filling the office of county judge to act as a substitute judge to appoint a receiver, in the absence of the district judge from the county, in a matter pending in the district court, within and for the county.
Massingale & Duff and Everest, Vaught & Brewer, for plaintiffs in error.
Smith, Jones & Smith, for defendant in error.
¶1 This is an action brought by John B. Williams, plaintiff below, defendant in error herein, against F. P. Finerty and C. H. Johnson, defendants below, plaintiffs in error in this appeal. We will refer to F. P. Finerty and C. H. Johnson as the plaintiffs in error and John B. Williams as defendant in error in this opinion. On the 12th day of January, 1917, defendant in error filed a petition in the district court within and for Washita county, state of Oklahoma, Hon. Thomas A. Edwards, District Judge, against the plaintiffs in error for the illegal and wrongful conversion of 1912 bushels of wheat and 241 bushels of oats; claiming, as the petition originally stood, a loss of 92 cents a bushel on the wheat and 40 cents on the oats, also asking for a loss of $ 1,250 on farm and other items, making a total amount prayed for as damages, $ 1,985.60, and the $ 1,250 alleged to be loss on farm. After the evidence was introduced, the defendant in error asked leave of the court and was permitted to amend the prayer of his petition cutting out the loss on the farm and asking for damages for the difference between the selling price of the wheat and oats and the highest market value of the grain up to the time of trial. Almost three years prior to the filing of the instant case, and on January 19, 1914, F. C. Finerty had filed a suit in foreclosure against John B. Williams and others to foreclose a mortgage on the lands upon which the grain in controversy was raised. Said mortgage contained a provision for waiver of appraisement. On March 3, 1916, an application for appointment of receiver was filed in said foreclosure proceedings. Said application was in words and figures as follows, omitting caption:
¶2 The petition for the appointment of a receiver, as above quoted, sets out all the statutory grounds required for such an appointment as found in the second subdivision of section 4979, Rev. Laws 1910. Said statute reads as follows:
¶3 The order appointing a receiver by said county judge, omitting the caption, was in words and figures as follows:
"This cause coming on to be heard on this 26th day of June, 1916, before the undersigned, L. R. Shean, county judge of the county court of said Washita county, state of Oklahoma, in the absence of the Hon. Thomas A. Edwards, judge of the said court, within and for the said Washita county, state of Oklahoma, and in the absence of said Hon. Thomas A. Edwards of the 17th judicial district, state of Oklahoma, on the application of F. P. Finerty, substituted plaintiff in the above named and entitled cause, the said plaintiff appears by his attorney, Harry White, and said defendant John B. Williams, appears in person and by his attorney, James L. Austin, and the said defendant, Rachel L. Williams, appears by her attorney, James L. Austin, and it appears to the court that notice of said hearing before said Hon. L. R. Shean, had been duly served on said defendants, John B. Williams and Rachel Williams, said application of the said receiver to take charge of the property described in plaintiff's petition and said cause, in which lots three (3) and four (4) and the east half of the southwest quarter of section nineteen (19), west of the Indian Meridian; to take possession of said properties, to hold and manage same and the rents and profits thereto, and under the direction and control of said court; and the court having heard all the evidence and testimony offered by the said plaintiff and said defendants and the court having heard all the arguments and statements of counsel, and having been fully advised in the premises, finds that the said John B. Williams and Rachel Williams are both of them insolvent; and the court further finds that the note and mortgage have gone to judgment and the property thereto described, is wholly insufficient to discharge said mortgage debt; and the court further finds upon showing made and testimony produced that statements set up in the application of F. P. Finerty are true and he is entitled to have a receiver appointed to take possession and charge of said property and to hold and manage the same under direction of said court, as prayed for in his petition for receiver on file in this cause.
¶4 "It is therefore considered and ordered by the court that C. H. Johnson of said Washita county, state of Oklahoma, be and hereby is appointed as receiver of said premises, and he is hereby ordered to immediately take into his possession and under his control all the said property of said defendants above described, to hold and manage the same under the orders of the said court; and, "It is further ordered by the court that said receiver immediately take possession of harvesting, threshing and marketing of the grain and other crops growing on the said premises and that he make distribution of the proceeds in the following manner, to wit:
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