Kerns v. Morgan

• Decision Date: 20 December 1905
• Citation: 11 Idaho 572,83 P. 954
• Parties: KERNS v. MORGAN, JUDGE. CALIFORNIA CONSOLIDATED MINING COMPANY v. MORGAN, JUDGE
• Court: Idaho Supreme Court

83 P. 954

11 Idaho 572

KERNS v. MORGAN, JUDGE.

CALIFORNIA CONSOLIDATED MINING COMPANY v. MORGAN, JUDGE

Supreme Court of Idaho

December 20, 1905

EX PARTE ORDER-APPLICATION FOR ORDER BY STRANGER TO ACTION OR PROCEEDING-NOTICE REQUIRED-VOID ORDER-VACATION OF VOID ORDER-JUDGMENT ON APPEAL FINAL.

1. Where a stranger to an action or proceeding, who has not intervened and has never been made a party by order of court or in any manner recognized by the statute or rules of practice, files a petition and obtains an ex parte order without notice to any of the original parties to the action or proceeding or any person interested therein, held, that the order so procured is a nullity and void.

2. The provisions of section 4229 of the Revised Statutes, that "The court may likewise, in its discretion, after notice to the adverse party.... relieve a party or his legal representative from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect; and.... may grant the relief upon application made within a reasonable time, not exceeding six months after the adjournment of the term," do not apply to judgments and orders which show upon their face that they are nullities and void, and in such case the void order may be vacated after the lapse of more than six months after adjournment of the term.

3. After a case, wherein the district court granted a perpetual injunction, has been reversed on appeal and the injunction ordered dissolved by the appellate court, the district court has no power or authority to again issue an order in the same case which will have the same effect, for a time at least, as the original judgment which has been reversed.

(Syllabus by the court.)

ORIGINAL application by A. G. Kerns, receiver of the property of the Coeur d'Alene Bank, insolvent, to review the action of Hon. R. T. Morgan, District Judge, in making an order recalling an execution and restraining its further execution. Order vacated and annulled. Also original application by the California Consolidated Mining Company, a corporation, for a writ of certiorari to review the action of Hon. R. T. Morgan, District Judge, in making an order vacating and setting aside a previous void order. Writ quashed.

Costs awarded in favor of the receiver and against the California Consolidated Mining Company.

J. H Forney, W. W. Woods, John P. Gray and H. S. Gray, for Plaintiff A. G. Kerns, Receiver.

W. E Borah, M. A. Folsom, A. H. Featherstone and Hamlin, Lund & Gilbert, for Plaintiff California Consolidated Mining Company.

No briefs filed.

AILSHIE, J. Stockslager, C. J., and Sullivan, J., concur.

OPINION

STATEMENT OF FACTS.

This is a continuation of the case of California Consolidated Mining Company v. Manley, therefore decided by this court and reported in 10 Idaho 786, 81 P. 50. While that case was pending in this court on appeal, Joseph P. Keane filed his petition in the district court, in and for Shoshone county, as manager of the California Consolidated Mining Company, and on its behalf praying for an order permitting his company to deposit the sum of $ 6,000 with the court, or in such bank as the court might designate, and subject to the control and orders of the court to be applied on certain conditions, in full payment and satisfaction of the judgment and lien held by Abner G. Kerns, as receiver of the Coeur d'Alene Bank, against George B. McAulay and Van B. DeLashmutt. This judgment held by the receiver was for the sum of $ 58,950.76, besides interest. Keane's petition was entitled, "Geo. B. McAulay and Van B. De Lashmutt, Plaintiffs, vs. The Coeur d'Alene Bank, Defendant. In the Matter of the Receivership of the Coeur d'Alene Bank, a Corporation and Insolvent Debtor." In this petition is set out considerable of the history of the litigation as narrated in California Consolidated Min. Co. v. Manley, supra, and especially the order of June 24, 1901, made by the Honorable A. E. Mayhew, district judge, authorizing a compromise and settlement of the claim of the receiver against McAulay and DeLashmutt, for the sum of $ 6,000. The petitioner then states that Kerns, the receiver, had appealed to the supreme court from the order and judgment granting a perpetual injunction against the sale of the thirteen-sixteenths interest in the California lode claim, and that the appeal was then pending in the supreme court, and that the entire outstanding indebtedness of the Coeur d'Alene Bank was at that time less than $ 6,000. Here follows the prayer of this extraordinary petition:

"Your petitioner therefore respectfully prays that the court will make an order that whenever the said California Consolidated Mining Company shall deposit the sum of $ 6,000 in such bank or banks as the court may direct, said sum to be and remain in said bank or banks, subject to the order of the court, until the final determination of the appeal in the case of the California Consolidated Mining Company, a Corporation, v. Charles Manley, as Sheriff, etc., and Abner G. Kerns, Receiver, etc., and in event the courts finally decide that the said Coeur d'Alene Bank has any interest or lien upon the said California lode mining claim or any part thereof by virtue of the said pretended judgment in the case of Abner G. Kerns, Receiver of the Property of the Coeur d'Alene Bank v. Geo. B. McAulay and Van B. DeLashmutt, said case being numbered 1760, then the said sum of $ 6,000 shall be turned over to and receiver by said receiver or his successor in office as payment in full of all claims, liens or judgments, if any there be of the said Coeur d'Alene Bank against the said California lode mining claim and against all the property of the said California Consolidated Mining Company or its grantees or successors in interest.

"That during the time that said sum of $ 6,000 is so deposited in the bank it shall be in the custody of the court and not subject to attachment, liens, or executions of any kind or nature, and in case the judgment of the district court in the case of California Consolidated Mining Company v. Charles Manley, etc., and Abner G. Kerns, Receiver, etc., be affirmed in the supreme court of this state, then said sum of $ 6,000 so deposited shall be immediately delivered to the said California Consolidated Mining Company or its assigns.

"That as soon as said deposit is made of the said sum of $ 6,000, as may be directed by the court, it shall release the said California Lode Mining Claim and all the property of the said California Consolidated Mining Company from all claims, liens and judgments, whether valid or invalid, now claimed or hereafter to be claimed by the said A. G. Kerns, receiver of the said Coeur d'Alene Bank, in favor of said bank, and shall enable the said California Consolidated Mining Company to transfer the said property free from all claims, liens or judgments of the said Coeur d'Alene Bank."

This petition was filed January 7, 1905, and immediately, without notice to anyone, an order was made and filed by the district judge in substantial conformity with the prayer of the petition. Thereafter the case of the California Consolidated Mining Company v. Manley was argued and submitted in this court, and on May 8th, an opinion was filed and judgment entered reversing the judgment of the lower court. A petition for rehearing was filed, and on June 6th a further opinion was filed denying the respondent a rehearing. In the meanwhile neither Keane nor the California Consolidated Mining Company had deposited the $ 6,000 which he had secured leave to deposit in satisfaction and liquidation of the receiver's judgment against McAulay and DeLashmutt. Thereafter, however, and on July 3d, it appears that this money was deposited with the First National Bank of Wallace, with instructions that the same be held for the period of sixty days from June 28th, subject to the order of the district court of the first judicial district. On June 23d, A. G. Kerns, the receiver, made and filed his affidavit stating that he never had had any notice of the order of January 7th, and that the first he ever heard of such order was on the date he made this affidavit. On June 26th Kerns filed a further affidavit stating that on the latter date he had a conversation with the president of the First National Bank of Wallace, and that he was informed that up to that time no deposit had been made under the order of January 7th. These affidavits were submitted to the district judge, and he thereafter made an order vacating and setting aside the order of January 7th, which order vacating the original order of January 7th was filed August 1st. In the meanwhile the remittitur in the case of the California Consolidated Mining Company v. Manley, supra, had gone down, and on August 1st the district judge filed his findings of fact and conclusions of law and judgment in conformity with the judgment of this court. Thereafter, and on the thirty-first day of August, the California Consolidated Minining Company applied to and received from Mr. Chief Justice Stockslager of this court, a writ of error to the supreme court of the state of Idaho for a review of its judgment by the supreme court of the United States, and on that date the chief justice approved the usual cost bond required on the granting of such writs. On August 11th, a writ of execution was issued out of the district court in and for Shoshone county, in the case of Abner G Kerns, Receiver, v. George B. McAulay and Van B. DeLashmutt, and was placed in the hands of the sheriff of Shoshone county, and by him levied on the thirteen-sixteenths interest of the California lode claim, and the same was noticed for sale on September 5th. The sale was postponed from time to time by order of...