Gottwals v. Rencher

• Decision Date: 04 August 1939
• Docket Number: 3276.
• Citation: 92 P.2d 1000,60 Nev. 35
• Parties: GOTTWALS v. RENCHER et al.
• Court: Nevada Supreme Court

92 P.2d 1000

60 Nev. 35

GOTTWALS v. RENCHER et al.

No. 3276.

Supreme Court of Nevada

August 4, 1939

Appeal from Eighth Judicial District Court, Clark County; Wm. E Orr, Judge.

Suit by F. H. Gottwals against John S. Rencher and Velma Rencher wherein a receiver was appointed and ordered to sell certain partnership property. From an adverse judgment and an order denying new trial, plaintiff appeals. On motion for an order staying the hearing of receiver's return and account of sale and petition for order confirming and approving sale and for writ of supersedeas.

Motion for order staying hearing of return, account, and petition of receiver for confirmation of sale and vacating order setting hearing granted, and motion for order vacating sale denied.

A. A Hinman, of Las Vegas, for appellant.

C. D Breeze and Harold M. Morse, both of Las Vegas, for respondents.

EATHER District Judge.

Appellant, owner of an undivided half interest, and respondents, owners of the other undivided half interest in certain property at Boulder City, became involved in partnership difficulties, and the former, as plaintiff, brought suit against respondents (defendants) in the Eighth Judicial District Court, Clark County. The property involved consists of buildings and structures erected upon three city lots, a lease of said premises from the United States to appellant, and certain furniture and fixtures. Pursuant to an agreement of copartnership, the respective parties operated certain businesses in and upon said premises from November 1st, 1935, until June 4th, 1937. On the last mentioned date a receiver was appointed by said district court, who after qualifying took possession of said properties and businesses, and has ever since operated, conducted and administered the same.

After trial, judgment was rendered and entered in January, 1939, the last two paragraphs of the judgment as entered, reading as follows:

"That from the proceeds of such sale and from any other money belonging to the partnership in the Receiver's hands, said Receiver pay: (a) the expenses of the receivership, including compensation of the Receiver and of his attorney and other employees and the expenses incurred in operating the business during the receivership; (b) the general creditors of the business or partnership, charging to Plaintiff individually the item of Six Hundred Forty-five Dollars ($645.00) unpaid on accounts incurred by him prior to October 25, 1935, and also any other obligations incurred by Plaintiff prior to November 1, 1935; (c) to the Defendants the sum of Three Thousand Six Hundred Sixty-four and 51/100 Dollars ($3,664.51), plus a sum equal to all Plaintiff's withdrawals since the appointment of the Receiver, less any withdrawals by Defendants since said appointment, and plus also a sum equal to all obligations incurred by Plaintiff prior to November 1, 1935, and paid by the Receiver, plus Defendants' costs incurred herein taken at One Hundred One and 35/100 Dollars ($101.35); and (d) the residue equally to Plaintiff and defendants; and that said Receiver render unto the Court an account and report of his administration and of said sale; and obtain the confirmation and approval of the Court before paying over the sums herein mentioned.

"That in the event the funds in the hands of the Receiver from the sale of the properties and from all other sources be insufficient to pay the Defendants in full all of the sums mentioned in Subdivision (c) of Paragraph 8, after paying all sums mentioned in Subdivisions (a) and (b) of said Paragraph, then and in that event the Defendants have personal judgment against Plaintiff for the amount of such deficiency."

On February 25th, 1939 the receiver noticed certain of said properties for sale on March 3d, 1939. On March 2d, 1939 the trial court denied plaintiff's motion for a new trial. On the same day (March 2d) plaintiff served and filed his notice of appeal from said judgment and from the order denying his motion for new trial, and also filed his undertaking on said appeal. On said 2d day of March plaintiff served upon the attorneys for respondents and the attorneys for the receiver a written notice that he had perfected said appeal; said notice contained a demand that the respondents and the receiver "desist and refrain from all further acts and proceedings relating to the sale of the property, noticed to be sold by said Receiver herein, on the 3rd day of March, 1939, and that said sale be not made of said property, or any part thereof." On March 3rd the receiver sold said property to respondent John S. Rencher for $5,200. On March 7th the receiver filed his return and account of sale and petition for order confirming and approving said sale. On the same day the district court fixed March 18th as the time for hearing said return, account and petition. Also, on the same day (March 7), receiver served upon appellant notice of the time and place so fixed by the court for the hearing of said return, account and petition.

On March 11th appellant moved this court for an order staying the hearing of said return, account and petition, vacating the order setting said hearing, vacating said sale and for a writ of supersedeas. The motion was made upon the ground that said proceedings were stayed by the perfecting of plaintiff's appeal to this court, and is based upon the notice of motion and the affidavit of appellant's attorney.

Section 16 of the 1937 New Trials and Appeals Act, Stats. of Nevada, 1937, Chap. 32, p. 53, at p. 58, provides in part that to render an appeal effectual for any purpose, a written undertaking in the sum of $300 must be filed, or the sum of $300 deposited with the clerk of the district court within five days after the notice of appeal has been served.

Section 17 of said act provides in part that if the appeal be from a judgment or order directing the payment of money, or from an order dissolving or refusing to dissolve an attachment, it shall not stay the execution of the judgment or order unless a written undertaking be given, conditioned as specially provided in said Section 17.

Section 19 of said act provides in part that if the judgment or order appealed from directed the assignment or delivery of documents, or personal property, the execution of the judgment or order shall not be stayed by or upon appeal, unless the things required to be assigned or delivered be assigned and placed in the custody of such officer or receiver as the court may appoint, and an undertaking be entered into to be approved by the court or judge and in such amount as the court or judge may direct, and conditioned as specially provided in said section 19.

Section 20 of said act provides in part that if the judgment or order appealed from direct the execution of a conveyance or other instrument, the execution of the judgment or order shall not be stayed by the appeal until the instrument is executed and deposited with the clerk, and an undertaking executed to be approved by the court or judge in such amount as the court or judge may direct, and as specially provided in said section 20.

Section 21 of said act reads as follows: "If the judgment or order appealed from direct the sale or delivery of possession of real property, the execution of the same shall not be stayed unless a written undertaking be executed on the part of the appellant, with two or more qualified and sufficient sureties, or a bonding or surety company qualified to do business in the State of Nevada, to the effect that during the possession of such property by the appellant he will not commit, nor suffer to be committed, any waste thereon, and that if the judgment be affirmed he will pay the value of the use and occupation of the property from the time of the appeal until the delivery or possession thereof, pursuant to the judgment or order, not exceeding a sum to be fixed by the judge of the court by which the judgment was rendered or order made, and which shall be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment for a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency. In all other cases, not provided for in sections 16, 17, 19, 20, or 21 hereof, the amount and conditions of the undertaking to stay the execution of the judgment or order shall be fixed by the court or the judge thereof, in which the judgment was rendered or the order made."

Section 24 relates to the justification of sureties on undertakings on appeal, and to deposits of money in lieu of such undertakings.

Section 25 provides: "In cases not provided for in sections 17, 19, 20, 21 or 24 of this act, the perfecting of an appeal by giving the undertaking, and the justification of the sureties thereon, if required, or making the deposit mentioned in section 16, shall stay proceedings in the court below upon the judgment or order appealed from, except that where it directs the sale of perishable property the court below may order the property to be sold, and the proceeds thereof to be deposited to abide the judgment of the appellate court."

District Court Rule XXVI provides in part that: "No stay of execution upon motion for a new trial shall be granted or allowed, nor execution or other proceeding be stayed in any case, except upon the giving of a good and sufficient undertaking, in the manner and form as other undertakings are given, to be approved by the judge, with at least two sureties, for the payment of the judgment or debt, or performance of the act directed by the judgment or order, in such amount as may be fixed by the judge."

Without a stay of proceedings in the lower court, it seems clear that appellant might suffer irreparable injury in the...