Morbeck v. Bradford-Kennedy Co.

• Decision Date: 01 August 1910
• Citation: 110 P. 261,18 Idaho 458
• Parties: ARTHUR C. MORBECK et al., Respondents, v. BRADFORD-KENNEDY CO. et al., Appellants
• Court: Idaho Supreme Court

110 P. 261

18 Idaho 458

ARTHUR C. MORBECK et al., Respondents, v. BRADFORD-KENNEDY CO. et al., Appellants

Supreme Court of Idaho

August 1, 1910

APPEAL-STAY OF PROCEEDINGS-SUPERSEDEAS-RECEIVER.

(Syllabus by the court.)

1. Where a judgment was entered holding certain sales and transfers of personal and other property fraudulent and void and a receiver was appointed to take charge of such property and an appeal was taken by the defendants and an undertaking on appeal in the sum of $300 was filed, the court has the jurisdiction and power to continue the receivership for the preservation of such property pending the appeal.

An original application to this court for an order declaring the judgment and order appealed from to be superseded by the taking of the appeal. Application denied.

Judgment and order denied. Costs awarded to the respondents.

McBee &amp La Veine, Wm. T. Stoll, and B. S. Crow, for Appellants.

While the legislature permits of an appeal from an order appointing a receiver, it does not require any additional bond upon such appeal, except as is provided in sec. 4817. The California legislature has recognized the danger of suspending the power of a receiver during appeal without an additional appeal bond, but our legislature has not. The proceeding is modeled after the proceeding in the following cases: Snow v Holmes, 64 Cal. 232, 30 P. 806; Anderson v. Anderson, 123 Cal. 445, 56 P. 61.

The court is also referred to the case of Barnes v. Buffalo Pitts Co., 6 Idaho 519, 57 P. 267.

The following cases hold that an appeal from an order appointing a receiver stays proceedings under the order upon giving the proper undertaking. (State v. Superior Ct., 12 Wash. 677, 679, 42 P. 123; Catlin v. Baldwin, 47 Conn. 173; State v. Johnson, 13 Fla. 33; Wabash R. Co. v. Dykeman, 133 Ind. 56, 32 N.E. 823; Cook v. Cole, 55 Iowa 70, 7 N.W. 419; Metropolitan Bank v. Commercial Soap etc. Manufactory, 48 La. Ann. 1383, 20 So. 899; Everett v. State, 28 Md. 190; Farmers' Nat. Bank v. Backus, 63 Minn. 115, 65 N.W. 255; Buckley v. George, 71 Miss. 680, 15 So. 46; State v. Hirzel, 137 Mo. 435, 37 S.W. 921, 38 S.W. 961; People's Cemetery Assn. v. Oakland Cemetery Co., 24 Tex. Civ. App. 668, 60 S.W. 679; Carter v. Carter (Tex. Civ. App.) [1897], 40 S.W. 1030; Virginia etc. Steel etc. Co. v. Wilder, 88 Va. 942, 14 S.E. 806; Tornanses v. Melsing, 106 F. 775, 45 C. C. A. 615.)

Robert H. Elder, J. L. McClear, R. E. McFarland, and Hawley, Puckett & Hawley, for Respondents.

An appeal does not suspend the functions of a receiver. In many cases, and this is such a case, it would be dangerous to hold that the receiver's functions are so suspended, and to preserve the estate it may be necessary that the receivership be continued. (In re Real Estate Assn., 58 Cal. 356; 17 Ency. of Pl. & Pr. 872; Swing v. Townsend, 24 Ohio St. 1.)

It follows, therefore, that an order of the court below or of this court must be made in the premises before the appeal would operate as a supersedeas. (Hovey v. McDonald, 109 U.S. 150, 3 S.Ct. 136, 27 L.Ed. 888.)

It is held in the latter case that the matter of supersedeas in this kind of cases is generally regulated by statute, or by rule of the court. We have no statute upon the subject. Whether there is a rule of court in the eighth judicial district, the record here does not show.

There is a statute at present in California providing that an appeal taken supersedes a receiver. (Sec. 1103, Cal. Code Civ. Proc.) Before this statute the law in California was similar to ours.

Before the amendment to the California code a writ of prohibition was held to be the proper method of bringing the matter of supersedeas in connection with a receiver before the supreme court. Since said amendment an appeal is the only remedy. (Jacobs v. Superior Court, 133 Cal. 364, 85 Am. St. 204, 65 P. 826.)

Prohibition is the proper remedy here, as an appeal would not be effective. (Cronan v. Dist. Court, 15 Idaho 205, 96 P. 768.)

SULLIVAN, C. J. Ailshie, J., concurs.

OPINION

SULLIVAN, C. J.

This is an application to this court for an order declaring that the judgment and order appealed from in the above-entitled case were superseded by the taking of an appeal, and giving a bond on appeal in the sum of $ 300.

The action was brought by respondents as minority stock-holders of the Kidd Island Lumber Co. to procure the appointment of a receiver for the appellant, the Kidd Island Lumber Co., upon the ground that its affairs are being mismanaged and to cancel a conveyance of a large amount of timber land from said Lumber Co. to the appellant, the Bradford-Kennedy Co., upon the ground that the sale was made without any consideration therefor and was fraudulent and void.

It appears from the record that summons was served on the Kidd Island Lumber Co., the Bradford-Kennedy Co. and J. N. Ashburn, on the 26th of March, 1910. The other defendants were not served and did not appear. It also appears that default was entered against the appellants, and findings of fact and conclusions of law and a decree granting all the relief prayed for were made and entered. Appellants thereafter, on the 18th of May, made a motion to vacate and set aside the default and judgment on certain specific grounds. The motion was heard and overruled and an order entered to that effect, from which order, as well as from the judgment, an appeal was taken. A cash bond of $ 300 was given on said appeal. The judgment provided for the appointing of a receiver, canceling said conveyance and granting other relief. The judgment, among other things, provides as follows:

"And it is further ordered, adjudged and decreed that a receiver be appointed for the Kidd Island Lumber Co., a corporation, to take charge of all of its assets and property, real, personal and mixed, and to manage and control all of the assets and property, real, personal or mixed, of the Kidd Island Lumber Co., a corporation, under the direction of and until the further order of this court herein."

It appears from the transcript on the appeal that the property involved includes considerable real estate, over two million feet of lumber, sawmill, and much other personal property. The appellant on said appeal gave a cash bond for $ 300, and now contends, under the provisions of sec. 4817 of the Rev. Codes of Idaho, that said judgment is superseded and all proceedings are stayed and that appellant is entitled to have possession of said sawmill plant, lumber and other property claimed to have been purchased by it from the said Kidd Island Lumber Co., to manage and control, pending the appeal. Said sec. 4817 is as follows:

"In cases not provided for in sections 4810, 4811, 4812 and 4813 the perfecting of an appeal by giving the undertaking, or making the deposit mentioned in section 4809, stays proceedings in the court below, upon the judgment or the order appealed from,...