In re Estate of Prescott State Bank

• Decision Date: 31 March 1930
• Docket Number: Civil 2948
• Citation: 286 P. 189,36 Ariz. 419
• Parties: In the Matter of the Estate of the PRESCOTT STATE BANK, and Arizona Banking Corporation, Insolvent. v. JOHN A. ELLIS and T. J. BYRNE Appellees E. A. SAWYER, Appellant,
• Court: Arizona Supreme Court

286 P. 189

36 Ariz. 419

In the Matter of the Estate of the PRESCOTT STATE BANK, and Arizona Banking Corporation, Insolvent.

E. A. SAWYER, Appellant, v. JOHN A. ELLIS and T. J. BYRNE Appellees

Civil No. 2948

Supreme Court of Arizona

March 31, 1930

APPEAL from an order of the Superior Court of the county of Yavapai. Joseph S. Jenkes, Judge. Appelles' motion to dismiss appeal denied.

Mr. J Gardner Scott, for Appellant.

Messrs O'Sullivan & Morgan, for Appellee Ellis,

Messrs Cornick & Crable, for Appellee Byrne.

OPINION

LOCKWOOD, C. J.

The Prescott State Bank, a corporation hereinafter called the bank, was heretofore found to be insolvent, and during all the time mentioned in these proceedings was under the control of the superintendent of banks as provided by law. E. A Sawyer, hereinafter called appellant, at the time of the closing of said bank, was a creditor thereof. His claim was duly presented and allowed, and has not as yet been paid in full, it being extremely doubtful if the assets of said bank will be sufficient to pay all allowed claims. During the pendency of the insolvency proceedings, John A. Ellis and T. J. Byrne, hereinafter called appellees, were employed by the superintendent of banks as attorneys in the matter, and performed various services in connection with the insolvency, being paid by the receiver certain sums from time to time. On September 17th, 1929, appellees filed a petition alleging their employment by the superintendent, and that it had been agreed at the time of such employment there should later be a determination of the value of their services by the court, and asking for such determination to be made. The original superintendent of banks, A. T. Hammons, had, during the process of the receivership, been succeeded in office by James B. Button, and appellees alleged in their petition that the latter, not being at all familiar with the value of the legal services performed by them, had requested that appellees petition the court to fix a reasonable attorney's fee. The court heard evidence as to the value of the services and entered the following order:

"The Petition of John A. Ellis, joined in by T. J. Byrne, coming on regularly to be heard on the 30th day of October, 1929, for the allowance of attorneys' fees. for services rendered in connection with the above styled matter, and evidence having been submitted in support of said petition, and the Court having found the hereinafter mentioned amount reasonable,

"It is hereby ordered, adjudged and decreed that the sum and amount of Thirty Five Thousand Dollars ($35,000.00) be allowed and paid to said attorneys, and that there be deducted therefrom any amounts heretofore advanced, but excluded therefrom the monthly payments that have been allowed."

Thereafter, appellant filed a petition asking that said order be set aside upon various grounds. Appellees appeared and demurred to the petition, and, the matter having been duly presented to the court, the demurrer was sustained and the ordered dismissed; whereupon, an appeal from said order of dismissal was taken to this court.

Appellees have moved that the appeal be dismissed on the ground that this court is without jurisdiction to entertain it, as being an appeal from an interlocutory order, which is reviewable, if at all, only on an appeal from a final judgment, under paragraph 3660, Revised Code of Arizona of 1928. They state that they base their motion upon the decision of this court in the case of Ritter v. Arizona Cattle Co., 34 Ariz, 278, 271 P. 25, 27. In that case we said:

"Orders made in the course of the administration of an insolvent's estate by a receiver are not specifically named in paragraph 1227, supra, as appealable, and of course the right of appeal is statutory. We think that such orders are interlocutory and subject to revision or change, for good reason, upon the hearing of the final account of the receiver. . . .

"We think orders approving current accounts of the receiver or authorizing expenditures by him fall within the terms of this statute and may be reviewed only on appeal from the final judgment approving or disapproving the final account of the receiver. In discussing this provision in Miami Copper Co. v. Strohl, 14 Ariz. 410, 130 P. 605, we said:

"'All orders made in cases before judgment, other than those enumerated, are therefore unappealable, for, as the manner of taking an appeal is purely statutory, the right cannot be extended to cases not included within the statute. And it follows that such nonappealable orders involving the merits and necessarily affecting the judgment may, under the terms of the statute, be reviewed on appeal from the judgment alone when properly presented in the record.'

"In Rochat v. Gee, 91 Cal. 355, 27 P. 670, the court suggested the usual practice with reference to receiver's accounts, as also why the appeal is from the final order of settlement of the account, in this language:

"'The final account will refer to previous reports filed, and when that is settled, anyone...