Harris v. Chambers. Dist. Judge

• Citation: 247 P. 695,1926 OK 566,121 Okla. 75
• Decision Date: 22 June 1926
• Docket Number: Case Number: 17409
• Parties: HARRIS, Receiver, et al. v. CHAMBERS. District Judge, et al.
• Court: Oklahoma Supreme Court

1926 OK 566

247 P. 695

121 Okla. 75

HARRIS, Receiver, et al. v. CHAMBERS. District Judge, et al.

Case Number: 17409

Supreme Court of Oklahoma

Decided: June 22, 1926

Syllabus

¶0 1. Appeal and Error -- Duty of District Court to Enforde Mandate. It is the duty of the district court to enforce the mandate of the Supreme Court issued upon affirmance of the judgment of the district court brought here on appeal.

2. Same--Construction of Mandate by Lower Court. If a mandate of the Supreme Court is open to construction, the court below can resort to the opinion of the Supreme Court, and can apply proper rules of construction, but further than this the court below cannot go.

3. Same--Mandamus to Compel Proper Construction. It is the province of this court to construe its own mandate in connection with its opinion, and, if it finds that the trial court has misconstrued the same, the mistake may be corrected by writ of mandamus from this court.

4. Same--Receivers--Lower Court Without Power to Terminate Receivership Before Performance of Acts Enjoined by Affirmed Judgment. As a general rule, a court of equity may remove or discharge a receiver, whom it has appointed, at any stage of the litigation, but when the order appointing enjoins certain duties upon the receiver and the order is affirmed in all respects by the Supreme Court on appeal, the judgment of the trial court becomes merged in the judgment and decree of the appellate court, and the trial court is without jurisdiction to terminate said receivership until after the receiver has performed the acts and things enjoined upon him.

J. B. Dudley, Lydick & McPherren, and Kittie C. Sturdevant, for petitioners.

Stuart, Sharp & Cruce, Poe & Lundy, and Twyford & Smith, for respondents.

MASON, J.

¶1 This is an original proceeding brought in this court to require the district court of Oklahoma county, Okla., to carry into effect the mandate of this court in cause No. 13646, Riverside Oil & Refining Co., a corporation, et al. v. S. D. Lynch et al., 114 Okla. 198, 243 P. 967. Said case was one brought, originally, in the district court of Oklahoma county by certain minority stockholders of the Riverside Oil & Refining Company, a Delaware corporation, authorized to do business in this state, for the benefit of the corporation, against the directors and other officers and managers of the corporation and naming the corporation itself as a defendant. The plaintiffs alleged fraudulent appropriation of corporate funds and fraudulent issue of corporate stock by the officers of the corporation, and a judgment for the recovery of such funds, the cancellation of such stock, and the appointment of a receiver to protect the minority stockholders was prayed for. The district court rendered its judgment in favor of the plaintiffs, which judgment was based upon the report of a referee who had heard and reported the evidence and his conclusions of law. By this judgment it was decided, in substance, and among other things, that O. O. Owens was the active manager of the affairs of the corporation and dominated and controlled its board of directors; that he had wrongfully appropriated to his benefit corporate funds to the extent of, at least, $ 93,324.84, but, owing to the fact that the personal affairs of the said Owens and the affairs of said corporation were so confused, the court was unable to find whether other misappropriations had been made. It was further adjudged that O. O. Owens had wrongfully made a secret profit of $ 2,500. Judgment for the recovery of all of said money, was rendered against Owens in favor of said corporation. The court also found that said shares of capital stock in said corporation had been wrongfully issued by said officers, and judgment was rendered canceling the same.

¶2 It appears that, except as to the aforesaid wrongs of its officers, the corporation was then solvent and prosperous, and that it was being efficiently managed, but the district court, for the purpose of remedying the aforesaid conditions, appointed a receiver, and specifically directed him to take charge of all corporate assets, make an audit of the corporate books and an inventory of the corporate property. It was directed that said order be made "especially to show the exact condition existing between said company and the defendant O. O. Owens." The receiver was also directed to report to the court the result of his investigation into "the facts with reference to the conditions of the account as between the defendant Owens and the defendant company." The court enjoined the corporate officers from interfering with the receiver in the discharge of his duties. The defendants appealed from said judgment, which was stayed pending the appeal. The judgment of the lower court was affirmed in all respects in an opinion of this court, written by Mr. Justice Clark (Riverside Oil & Refining Co. et al. v. Lynch et al., 114 Okla. 198, 243 P. 967, and the mandate of this court was duly issued and spread of record in the trial court. Thereupon the defendants, in said suit filed with the court clerk an instrument entitled "release of judgment," by which the said corporation, acting through its same officers, asserted that said judgment against O. O. Owens was thereby released. The same shows upon its face that it was executed without consideration and because the majority stockholders had declared such judgment, although approved and affirmed by this court, to be "false fraudulent, inequitable, unconscionable and without merit whatsoever."

¶3 The defendants then filed in said case, in the district court, their motion to vacate the judgment by which the receiver had been appointed, which judgment had been affirmed by this court. The motion was based upon the grounds that the corporation was then solvent and prosperous, and that since the appointment of said receiver the corporation had retained its said officers and that during said time they had given the corporation an efficient, and honest administration, which was satisfactory to the majority stockholders; that a receiver could not efficiently manage the affairs of the corporation. The original judgment appointing the receiver had been stayed pending the appeal, and it appears by the terms of the motion and the record in the case that the receiver had never been permitted to take possession of any of the corporate assets or to do any of the things required of him by the order of appointment. It further appears that the judgment against O. O. Owens had not been collected and that the officers and majority stockholders would not collect the same, and it does not appear that the stock ordered canceled had actually been canceled or surrendered. Neither does it appear that there is any change in the attitude of Mr. Owens in his relation toward the corporation, or the minority stockholders, nor does it appear that there is any change in the attitude of the majority stockholders from that existing at the time the receiver was appointed.

¶4 The plaintiffs and the receiver then filed their motion to strike defendants' motion to vacate on the ground that, since the district court must enfore the mandate of this court, it was without jurisdiction to then grant the relief sought--it being contended that to grant such relief would be to disregard and disobey such mandate. The district court overruled such motion to strike and ordered a hearing upon the facts alleged. The plaintiffs and the receiver thereupon commenced this action in mandamus to require the district court to strike such motion to vacate; to place the receiver in charge of all corporate assets and to do other things alleged by the plaintiffs to be necessary to enforce the mandate of this court. It will not be questioned, we take it, but what it is the duty of the district court to enforce the mandate of the Supreme Court issued upon affirmance of the judgment of the district court brought here on appeal. See Ex parte Sibbald, 37 U.S. 488, 12 Pet. 488, 9 L. Ed. 1167. And if the district court fails so to do, mandamus is the proper remedy to cause the enforcement of such mandate, as an appeal would not afford the aggrieved parties the prompt and effective relief to which they are entitled. St. Louis & S. F. Ry. Co. v. Hardy, District Judge, 45 Okla. 423, 146 P. 38. The foregoing rules are elementary, and no serious objection is urged against them, but the parties to this action do not agree upon a construction of the mandate of this court in the original suit.

¶5 In Gilliland v. Bilby et al., 53 Okla. 309, 156 P. 299, this court approved the following rule:

"If a mandate of the Supreme Court is open to construction, the court below can resort to the opinion of the Supreme Court, and can apply proper rules of construction, but further than this the court below cannot go."

¶6 In St. Louis & S. F. Ry. Co. v. Hardy, District Judge, supra, we held:

"It is the province of this court to construe its own mandate in connection with its opinion, and, if it finds that the trial court has misconstrued the same, the mistake may be corrected by writ, of mandamus from this court."

¶7 See, also, State ex rel. v. Pitchford, 68 Okla. 81, 171 P. 448; Gammel Statesman Publishing Co. v. Jones & Co. (Tex. Civ. App.) 206 S.W. 931; Cline v. Cline (Ky.) 201 Ky. 318, 256 S.W. 386; Brictson Mfg. Co. v. Woodrough, District Judge, 284 F. 484; Union Trust Co. v. Curtis (Ind.) 186 Ind. 516, 116 N.E. 916; Harding v. Garber, 20 Okla. 11, 93 P. 539. Therefore, in construing said mandate, we must resort to a careful consideration of the opinion on which it is based. In so doing, the true intent thereof must be deduced from a consideration of the entire opinion and no one expression or portion thereof can be considered to the exclusion of other thoughts recited therein. In that opinion, this court specifically approved all the findings of fact and conclusions of law submitted to the lower court by the referee, and the judgment of the lower c...