Greeley v. Missouri Pac. Ry. Co.

• Decision Date: 18 June 1894
• Citation: 27 S.W. 613
• Court: Missouri Supreme Court
• Parties: GREELEY et al. v. MISSOURI PAC. RY. CO. et al.<SMALL><SUP>1</SUP></SMALL>

27 S.W. 613

GREELEY et al. v. MISSOURI PAC. RY. CO. et al.¹

Supreme Court of Missouri.

June 18, 1894.

APPEAL — FINAL ORDER — CONSTRUCTION OF STATUTE — APPOINTMENT OF RECEIVER.

1. Under the law of 1891, regulating appeals (Sess. Laws Mo. 1891, p. 70), an appeal will not lie from an order appointing a receiver,

and directing the delivery to him of property in suit, pending litigation for an accounting in respect of said property. Such an order is not a final judgment, within the meaning of the statute cited, but is interlocutory in character.

2. The Missouri decisions reviewed as to the necessary finality of orders or judgments to support an appeal.

3. In interpreting an amendment to the law, it is often useful to consider the prior state of the law on the subject, to reach the intent of the change made.

4. The effect of an order appointing a receiver of railroad property, pending a suit in equity affecting it, discussed.

(Syllabus by the Judge.)

In banc. Appeal from circuit court, Pettis county; Richard Field, Judge.

Action by Greeley and others against the Missouri Pacific Railway Company and others. From an order refusing to set aside an order appointing a receiver, defendants appeal. Dismissed.

H. S. Priest, for appellants. Sangree & Lamm and Jackson & Montgomery, for respondents.

BARCLAY, J.

This is a suit in equity. The petition was filed by certain stockholders of the Sedalia, Warsaw & Southern Railway (which, for brevity, we shall call the "Warsaw Road") to secure an accounting and other relief. The defendants are the Missouri Pacific Railway Company, the Warsaw road, and several of the directors of the latter, who are also directors or other officers of the Missouri Pacific Railway. The general idea of the bill or petition is that the Warsaw road had been fraudulently managed in the interest of the Pacific Railway by the directory of the former road, under the influence or control of the latter company, contrary to the constitution and laws of the state. The petition is very long. It states a mass of facts supposed to support its general theory, above indicated. It prays an accounting between the said companies, under a contract between them, alleged to have been violated by the defendant company in several particulars. It also prays for the appointment of a receiver of the Warsaw road pending the litigation. It further prays an injunction in regard to the voting of certain stock, and for general relief. The Warsaw road, the Pacific Railway, and one of the other defendants filed separate answers to the plaintiffs' amended petition. The cause was then set down for a hearing of the motion of plaintiffs for a receiver of the property involved in the controversy pending the suit. That motion was fully heard, and considerable evidence given on behalf of each of the adversary parties. After the submission of the motion, it was kept under advisement until November 10, 1893, when the trial court made an order appointing a receiver of the Warsaw road and of all its property affected by the litigation, giving a variety of directions touching the management of the property, and requiring the Missouri Pacific Railway to deliver such of the property as was in its possession to the receiver so appointed. The receiver qualified by giving bond and filing an affidavit to faithfully perform the trust, as required in the order of appointment. The defendants moved to set aside the order appointing the receiver, and, upon the denial of that motion, preserved exceptions by a proper bill in due form. All of the defendants came into court before the disposition of the motion last mentioned. At this stage of the case, the defendants prayed the trial court for an appeal, but it was denied. They then applied to one of the judges of this court, who thereupon made an order allowing defendants an appeal, with a supersedeas.

Plaintiffs have moved for a dismissal of that appeal on the ground that it was not and is not authorized by law. That is the question with which we have now to deal. The statute governing the subject is a recent one. It was passed in 1891, before the institution of this litigation. It is as follows: "Any party to a suit aggrieved by any judgment of any circuit court, in any civil cause from which an appeal is not prohibited by the constitution, may take his appeal to the court having appellate jurisdiction from any order granting a new trial, or in arrest of judgment, or dissolving an injunction, or from any interlocutory judgment in actions of partition which determine the rights of the parties, or from any final judgment in the case, or from any special order after final judgment in the cause; but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case." Laws 1891, p. 70, approved April 18, 1891. Prior to the enactment of the section above quoted, the general law had for many years permitted an appeal to the proper court from "any final judgment or decision of any circuit court in any civil cause." Rev. St. 1889, § 2246; Rev. St. 1879, § 3710; Gen. St. 1865, p. 684, § 9; Rev. St. 1855, p. 1287, § 9; Rev. St. 1845, p. 831, § 11; Rev. St. 1835, p. 470, § 7; Geyer's Dig. 1818, p. 261, § 54. The course of decisions in Missouri construing the provision of law just mentioned indicates very plainly that the words "final judgment or decision" were never given any such elasticity of meaning as is now contended for by defendants. Thus, it was held that the following orders were not appealable, because interlocutory in nature, namely:...