Grieve v. Huber

• Decision Date: 10 March 1930
• Citation: 285 P. 788,41 Wyo. 168
• Parties: GRIEVE v. HUBER et al.
• Court: Wyoming Supreme Court

285 P. 788

41 Wyo. 168

GRIEVE v. HUBER et al.

Supreme Court of Wyoming

March 10, 1930

S.E Phelps, of Casper, for the petition.

OPINION

BLUME C. J.

A petition for rehearing has been filed herein. The first ground urged is that the judgment of May 14, 1928, was void because the trial court was then without jurisdiction in the case by reason of the fact that an appeal was then pending in this court from an order appointing a receiver. Grieve v Huber, 38 Wyo. 223, 266 P. 128. The claim now urged was not mentioned on the original hearing herein, and we might well disregard it for that reason. But, anxious not to do injustice, we have fully considered the point. The law does not seem to sustain the appellant’s claim. It is generally held, though there may be exceptions, that an appeal from an interlocutory order does not divest the trial court of jurisdiction to proceed in matters not involved in the appeal. 3 C. J. 1259. And in 3 C. J. 1326 it is said "Notwithstanding a supersedeas on appeal from an order appointing a receiver, the cause remains pending in the trial court, and amendments and changes in the pleadings may be made as in other cases; and the parties are not deprived of the right to a trial of the cause on the merits pending the appeal." See, also, cases cited in note (e) of 3 C. J 1260. In the case of Wabash R. R. Co. v. Dykeman, 133 Ind. 56, 32 N.E. 823, 824, the court said: "After a receiver has been appointed, and the order making the appointment appealed from, the cause, notwithstanding the appeal, remains pending in the nisi prius court, and amendments or changes in the pleadings may be made as in other cases * * *. On such appeal no question will be considered as to the sufficiency of the complaint or other pleading in the action, except those which immediately led to the appointment of the receiver, leaving all other matters open and undetermined, and still within the control of the court below."

Furthermore, a consideration of section 6413, Comp. St. 1920, would seem to completely dispose of the matter. That section provides: "No appeal taken from any order made before judgment shall stay further proceedings in the action in the trial court, unless by order of the judge thereof."

It is not claimed that any order was made staying further proceedings. If, accordingly, the statute quoted is not applicable, it is only because a judgment that was binding upon the appellant had already been entered in the cause. One party cannot, of course, rely upon the existence of a judgment that in no way concerns him or binds him. A judgment had been rendered against other parties on August 17, 1926. If that was binding upon appellant, as many courts would hold, as shown in the original opinion, then the judgment of May 14, 1928, becomes wholly immaterial herein. If it was not binding upon it, then it cannot be relied on herein to prevent the application of section 6413 supra; for then, so far as appellant is concerned, the first judgment rendered in the case was that of May 14, 1928, making the provision of the foregoing statute directly applicable, and left the trial court full power to proceed in the case as it did notwithstanding the appeal from the order appointing a receiver. Congress has enacted a provision similar to that of our statute. Section 129 of the Judicial Code (28 USCA § 227) provides that appeals may be taken from interlocutory orders, including orders appointing a receiver, but that "the proceedings in other respects in the district court shall not be stayed during the pendency of such appeal unless otherwise ordered by the court." ...