Pacific Northwest Packing Co. v. Allen

• Decision Date: 06 May 1901
• Docket Number: 658.
• Citation: 109 F. 515
• Parties: PACIFIC NORTHWEST PACKING CO. v. ALLEN et al.
• Court: U.S. Court of Appeals — Ninth Circuit

109 F. 515

PACIFIC NORTHWEST PACKING CO. v. ALLEN et al.

No. 658.

United States Court of Appeals, Ninth Circuit.

May 6, 1901

Bausman Kelleher & Emory and Wm. B. Allison, for appellant.

Preston Carr & Gilman, for appellees.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The appellees move to dismiss the appeal for the reason that no appeal lies from the order from which it is attempted to be taken. On September 8, 1900, at the beginning of the suit upon reading and filing the bill, upon motion of the complainant the court appointed John H. McGraw receiver without notice, and directed him to forthwith take possession of the property involved in the suit. The record shows that on the same date the receiver qualified and filed his bond. On October 15, 1900, the defendant, the Pacific Northwest Packing Company, moved the court to set aside the order appointing the receiver. On October 25, 1900, the court made the order from which the present appeal is taken. The order recited that upon the affidavits submitted on said hearing it had been made to appear, and the court so found, that on September 8th, and within an hour after the appointment of the receiver, the defendant had received notice thereof. The order confirmed the appointment of the receiver, and directed that he be continued as receiver of all the mortgaged property, and it denied the motion to vacate and set aside the previous order of September 8, 1900. By the act of June 6, 1900 (31 Stat. 660), there was created the right to appeal to the circuit courts of appeals from an interlocutory order appointing a receiver. The act amended the act of March 3, 1891, so that it shall read as follows:

'Sec. 7. That where, upon a hearing in equity in a district court or in a circuit court, or by a judge thereof in vacation, an injunction shall be granted or continued or a receiver appointed, by an interlocutory order or decree, in a cause in which an appeal from a final decree may be taken under the provisions of this act to the circuit court of appeals, an appeal may be taken from such interlocutory order or decree granting or continuing such injunction or appointing such receiver to the circuit court of appeals: provided, that the appeal must be taken within thirty days from the entry of such order or decree.'

We think the appeal is properly taken from the order of October 24, 1900. It is true, that order was not the order by which the receiver was originally appointed, but it was the first order made upon a hearing concerning the question of such appointment. The former order was ex parte. It was made without a hearing. In order to a hearing, it was necessary to give the defendant notice, and the opportunity to appear and contest the application. This was not done until the hearing of October 25th, which was had upon the motion to vacate the appointment. Then, for the first time, the court heard the objection of the defendant to the appointment of a receiver and then, for the first time upon a hearing, adjudicated the question of the propriety of such appointment. By the amendment of June 6, 1900, it was intended to create the right of appeal from every order appointing a receiver upon a hearing. It was not intended to make appealable an appointment ex parte. The act secures a substantial right-- the right of appeal-- to every defendant whose property is taken from his possession by a receivership, but it shall first be had upon a hearing concerning the necessity of such appointment. The act must be given a fair construction, to conserve the purposes intended to be secured by it. For the purposes of the present appeal, we hold that the order confirming the appointment of the receiver upon the hearing was an order appointing the receiver. It stands as if no other order had preceded it. To rule otherwise would be to hold that there is no appeal from the action of the court in taking from the possession of the defendant his property through a receiver, in case the order appointing the receiver was first obtained ex parte. Such a construction would defeat the purpose of the act. The evident intention of the act was to give to the circuit court of appeals the right to review the action of a circuit or district court in an equitable proceeding, in taking from defendant by an interlocutory order the possession of his property through a receiver, but at the same time to require, as a prerequisite to such appeal, that the question of the propriety and...