Muellhaupt v. Joseph A. Strowbridge Estate Co.

• Decision Date: 14 April 1931
• Citation: 298 P. 186,136 Or. 99
• Parties: MUELLHAUPT v. JOSEPH A. STROW-BRIDGE ESTATE CO. ET AL.
• Court: Oregon Supreme Court

298 P. 186

136 Or. 99

MUELLHAUPT v. JOSEPH A. STROW-BRIDGE ESTATE CO. ET AL.

Supreme Court of Oregon

April 14, 1931

In Banc.

Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.

Suit by Mary S. Muellhaupt against the Joseph A. Strowbridge Estate Company and others, wherein the Security Savings & Trust Company was appointed receiver of the defendant corporation. From the order appointing the receiver, defendants appeal.

Appeal dismissed.

John F Logan and Isham N. Smith, both of Portland, for appellants.

James W. Crawford and J. P. Kavanaugh, both of Portland (Bowerman &amp Kavanaugh, of Portland, on the brief), for respondents.

KELLY, J.

The order, from which an appeal in this case is sought to be prosecuted, is as follows:

"Decree

"(Omitting the title of the court and cause)

"At this time this cause comes on for consideration, and the court having heretofore heard the evidence and arguments and having considered the briefs of the attorneys for the respective parties, and being now fully advised, renders the following decree:

"It is hereby ordered, adjudged and decreed that Security Savings and Trust Company, a corporation, of Portland Oregon, be, and it is hereby appointed receiver of the defendant corporation, to-wit: The Joseph A. Strowbridge Estate Company, said receivership to continue until the further order of this court; and

"It is further ordered, adjudged and decreed that said receiver shall not have power or authority to sell, or otherwise dispose of any of the assets of said corporation, except upon a further order of this court and

"It is further ordered, adjudged and decreed that the defendants render into this court a true and full accounting of all transactions of said corporation and have Alex C. Rae accept figures previously compiled and submitted by Arch J. Tourtelotte, consolidate such figures with his own findings and bring the accounting down to November 5th, 1929, at which date the assets of the defendant corporation will be turned over to said receiver. That upon such accounting being rendered, the plaintiff may object to the same or any part thereof.

"It is further ordered, adjudged and decreed that the plaintiff shall recover her costs and disbursements in this suit.

"Dated this 1st day of November, 1929.

"Walter H. Evans, Circuit Judge."

Defendants, who are the appellants herein, urge that the foregoing order is an appealable order.

Their first ground for this position is that the order in question is void. Two reasons are assigned in support of that contention:

(1) Attention is called to the fact that there are two suits between these parties; that in the complaint in the companion case (298 P. 189) to this one, allegations are made strikingly similar to those appearing in the complaint upon which this case has been presented; that both of these cases were heard in the lower court at the same time and upon the same testimony; and that the companion case was decided by the circuit court in defendants' favor. Upon these facts defendants claim that the equities were decided in favor of defendants herein, and therefore the court was powerless to appoint a receiver in either or both cases for want of equity in plaintiff's suits.

(2) It is asserted that the corporation is a solvent going concern, and therefore the court had no jurisdiction to appoint a receiver under either the statutory or general equity powers.

Defendants' second ground in support of their contention that the order is appealable is based upon the claim that it is a final order affecting a substantial right and depriving the corporate directors of their powers to administer corporate functions.

As to the first point, the trial of two cases upon the same testimony does not necessarily render the final order in one case res adjudicata in the other. In order to do so, the issues must be the same, and the parties affected must be the same. In the companion case to this one, a demurrer of the corporation to the third amended complaint was sustained, and as to such corporation the case was dismissed. In the case at bar, the corporation answered, and the hearing was had upon the issues joined in the complaint of plaintiff and the answers of the defendants. The issues tendered in the third amended complaint in such companion case were not the same as those tendered in the case wherein the order first herein set forth was made. It is true that the alleged fraudulent inducement to surrender plaintiff's stock is pleaded in both cases and also the allegedly wrongful distribution of assets prior to July 23, 1925; but the taking of the $15,395.62 demand note from A. B. Strowbridge, the alleged transaction with Fred A. Jacobs Company or the Jacobs-Stein Company, wherein an alleged loss of more than $25,000 is set forth, that an examination of the books of defendant will reveal other and greater irregularities fraud, corruption, and mismanagement, and the alleged wrongful distribution of the capital assets of the corporation since July 23, 1925, are not incorporated...