First Nat. Bank of Pocatello v. Bunting & Co. Bankers
| Decision Date | 13 December 1900 |
| Citation | 7 Idaho 387,63 P. 694 |
| Parties | FIRST NATIONAL BANK OF POCATELLO v. BUNTING & CO. BANKERS |
| Court | Idaho Supreme Court |
APPEAL-MOTION TO DISMISS - RECEIVER - APPLICATION TO SELL PROPERTY-JURISDICTION OF JUDGE.-Under the provisions of subdivision 1, section 4807 of the Revised Statutes, and section 9, article 5, of the constitution, an appeal may be taken from an order or judgment confirming a receiver's sale. Under the statutes of this state the judge at chambers may grant the application of a receiver to sell property. Held, under the evidence in this case that the judgment confirming the receiver's sale must be affirmed.
(Syllabus by the court.)
APPEAL from District Court, Bingham County.
Affirmed. Costs of this appeal awarded to the respondent.
Thomas F. Terrell and Hawley, Puckett & Hawley, for Appellant.
The power of judges and courts over receivers and receiverships is statutory, and without such power conferred by statute the court or judge cannot act. (Idaho Rev. Stats., secs 4329-4334; Sweeney v. Mahew, 6 Idaho 455, 56 P. 85.) Does section 4333 of the Revised Statutes confer the power upon the judge or the court for the sale of property in the hands of a receiver? Courts can exercise judicial functions only at such times and places as are fixed by law, and judges of courts can enter no order on vacation, except such as are expressly authorized by statutes. (Delano v. Board of Commrs., 4 Idaho 83, 35 P. 841, 842; 12 Am. & Eng Encly. of Law, 14.) Such business as may be transacted out of court is exceptional and must find its warrant in some express provision of the statute. (Delano v. Board of Commrs., 4 Idaho 83, 35 P. 841-843; Larco v. Casaneuava, 30 Cal. 561; Norwood v. Kenfield, 34 Cal. 329; Lomis v. Andrews, 49 Cal. 239; Ellis v. Carl, 7 Neb. 381.) We also call attention to other authorities defining and construing the powers of judges at chambers. (Washington & I. R. v. Cocur D'Alene etc. Ry., 3 Idaho 263, 28 P. 394; Gaffney v. Piper, 5 Idaho 490, 51 P. 406; Van Duzer v. Towne, 12 Colo. App. 4, 55 P. 13; Johnson v. Bouton, 56 Neb. 626, 77 N.W. 57; Staab v. Atlantic & P. R. Co., 3 N. Mex. 606, 9 P. 381; Colter v. Marriage, 3 N. Mex. 604, 9 P. 383.) Section 9 of article 5 of the constitution states "the supreme court shall have jurisdiction to review upon appeal any decision of the district courts or the judges thereof." The statute regulating appeals, section 4807 et seq. of the Revised Statutes, was enacted while we were under the territorial system and the organic act was our fundamental law. The jurisdiction of the supreme court is now derived from the constitution alone, and the legislature can neither enlarge or restrict it. When a special case is devised the question whether the supreme court has jurisdiction in the matter must be determined by an interpretation of the provisions of the constitution and not by reference to the statute. (Appeal of Houghton, 42 Cal. 35; San Francisco v. Certain Real Estate, 42 Cal. 513; Quint v. McMullen, 103 Cal. 381, 37 P. 381; First Nat. Bank v. Barnum, 58 Mich. 315, 25 N.W. 202; State Bank v. Green, 8 Neb. 297, 1 N.W. 210; Heegaard v. Dakota Loan etc. Co., 3 S. Dak. 569, 54 N.W. 656; Dell v. Elses, 10 Ore. 359; Chandler v. Cushing Y. S. Co, 13 Wash. 89, 42 P. 548.) A decree confirming a sale, if it is final, may be appealed from.
Dietrich, Chalmers & Stevens, for Respondent.
What is denominated in the record a judgment is in legal effect only an order. If an appeal can be taken from this order, it may be taken from any order relating to the handling and disposition of the receivership estate. Such appeals are not in harmony with the policy of the law of receiverships, and hence were not provided for. If the lower court exceeds its jurisdiction, as it claimed in this case, the remedy is by writ of review. (Sweeney v. Mahew, 6 Idaho 455, 56 P. 85.) An appeal is the creature of the statute. (Rupert v. Board, 2 Idaho 19, 2 P. 718; Van Camp v. Board, 2 Idaho 29, 2 P. 721; General Custer Min. Co. v. Van Camp, 2 Idaho 40, 3 P. 22; Emeric v. Alvarado, 64 Cal. 529, 2 P. 418 481; Cotter. v. Cotter, 16 Mont. 63, 40 P. 63; Jones v. Quayle, 3 Idaho,, 640, 32 P. 1134; State v. Reed, 32 P. 202; Ostrander v. Weber, 114 N.Y. 95, 21 N.E. 112; Wyatt v. Wyatt, 2 Idaho 236, 10 P. 228; Wakeman v. Price, 3 N.Y. 334.) An order of sale is one that in all instances would be granted on ex parte application. The order of sale is not jurisdictional; jurisdiction attached when the court took possession of the property. An order of sale is advisory and recommendatory. It does not empower the receiver to consummate anything. The confirmation of the sale is the substantive act. (Rorer on Judicial Sales, 2d ed.) The want of authority in a receiver to transfer a bond is no defense to the obligors, where it appears that the transfer, if not previously authorized, was subsequently confirmed by the court. (Manufacturing Co. v. Brady, 105 U.S. 175, 26 L. ed. 1034; H. B. Claflin Co. v. Gibson, 21 Ky. Law Rep. 337, 51 S.W. 439.) The words "judge" and "court" are frequently used as convertible terms. (Ency. of Law, 2d ed., p. 22; Brewster v. Ludekins, 19 Cal. 170.) A judge in vacation is not the court, but the term "court" may be interpreted to mean a judge at vacation where it is necessary to effect the intention of the legislature. (Columbus v. Woolen Co., 33 Ind. 436; Dyckman v. McDonald, 5 How. Pr. 121; Pressley v. Lamb, 105 Ind. 171, 4 N.E. 682.) Assuming that the findings have a legal status, they cannot be reviewed as not being sustained by the evidence, unless the record affirmatively shows that it contains all the evidence, which is not shown by this record. (Shaefer v. Stein, 29 Ore. 147, 45 P. 301; Coffin v. Hutchinson, 22 Ore. 554, 30 P. 424; Collier v. United States, 173 U.S. 79, 19 S.Ct. 330; Stahl v. Pitney, 75 Ill.App. 649; Fleck v. Rau, 9 A.D. 43, 41 N.Y.S. 64; Railroad Co. v. Lorentzen, 79 F. 291.)
OPINION
This is an appeal from an order or judgment of the district court confirming a receiver's sale of fifty-five shares of the capital stock of the First National Bank of Pocatello, Idaho. The following, among other facts, appear from the record: The respondent, C. E. Thum, is the duly appointed, qualified and acting receiver of C. Bunting & Co., Bankers, and has been such receiver for more than three years last past. That said Bunting & Co. is insolvent and unable to pay its liabilities. That fifty-five shares of the par value of $ 100 each, of the capital stock of the said First National Bank of Pocatello came into the hands of said receiver as a part of the assets of said Bunting & Co., Bankers. That said Bunting & Co. at the time of its failure was the owner of one hundred and fifty other shares of the capital stock of said First National Bank of Pocatello, and had, prior to said failure and to the appointment of said Thum as receiver, pledged said one hundred and fifty shares to the Omaha National Bank of Omaha, Nebraska, as security for the payment of a debt of about $ 35,000 owing by said Bunting & Co. to said Omaha bank. And said last-mentioned bank held said one hundred and fifty shares as such security until February 17, 1900, and all of said shares were of the par value of $ 100 each. On the twelfth day of February, 1900, said receiver made an application to the district judge for an order to sell said fifty-five shares of stock either at public or private sale, provided he could obtain therefor not less than $ 125 per share. The judge, upon reading and filing said application, made the following order, to wit: Under said order the receiver caused to be posted in three public places in Blackfoot, Bingham county, three notices of the sale of said fifty-five shares of stock at public auction at the front door of the courthouse in the town of Blackfoot, said county, on the seventeenth day of February, 1900, at the hour of 2 o'clock P. M., subject to the confirmation of said court. At said time and place said receiver offered for sale each certificate of said stock separately, and received no bid therefor, and thereupon offered said fifty-five shares, or the whole amount thereof, in one parcel; and the highest and best bid which he received therefor was that of D. W. Standrod & Co., of $ 6,875, that being $ 125 per share. He thereupon sold the same to said Standrod & Co., subject to the confirmation of said sale by the court. Thereupon the receiver made a report of said sale to the court, and notice was given of the time and place of hearing said return, which was at the courthouse in the town of St. Anthony, Fremont county, Idaho on the first day of March, 1900, at 2 o'clock P. M. of said day. It was thereafter stipulated by Thomas F. Terrell, Esq., attorney for plaintiff, and the attorney for the receiver, that said hearing should be had at the courtroom in Blackfoot on the twelfth day of ...
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