Popp v. Daisy Gold-Min. Co.

• Decision Date: 06 December 1900
• Citation: Popp v. Daisy Gold-Min. Co., 22 Utah 457, 63 P. 185 (Utah 1900)
• Court: Utah Supreme Court
• Parties: G. W. POPP, RESPONDENT, v. THE DAISY GOLD MINING COMPANY, A CORPORATION, APPELLANT

63 P. 185

22 Utah 457

G. W. POPP, RESPONDENT, v. THE DAISY GOLD MINING COMPANY, A CORPORATION, APPELLANT

Supreme Court of Utah

December 6, 1900

Appeal from the Third District Court Tooele County.Hon. A. N Cherry, Judge.

From an order appointing a receiver pendente lite defendant company appealed.

Appeal dismissed.

Messrs Frick & Edwards, for appellant.

C. S Patterson, Esq., and George W. Moyer, Esq., for respondent.

MINERJ. BARTCH, C. J., and BASKIN, J., concur.

OPINION

MINER, J.

This appeal is prosecuted by the defendant from an order pendente lite appointing a receiver to take charge of the property of the defendant consisting of mining claims until the further order of the court.The application for the appointment of the receiver was based upon averments in the complaint.An undertaking was filed in accordance with the statute.The appellant filed a demurrer to the complaint, which was overruled, and this appeal was prosecuted.

Subd. 5 of Sec. 3114 R. S., 1898, provides that a receiver may be appointed by a court or judge in cases where a corporation has been dissolved or is in insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights.

Sec. 3116, provides that where a receiver has been appointed upon an ex parte application, the court may require the applicant to file an undertaking with sufficient sureties conditioned that the applicant shall pay to the defendant all damages he may sustain by reason of such appointment, and an additional undertaking may thereafter be required.

In this case a sufficient undertaking was filed in accordance with the order.

The respondent moves to dismiss the appeal for the reason that the order appealed from is not a final order or judgment, and no appeal can be taken therefrom.

The order appealed from continued until the further order of the court, and was effectual only during the pendency of the action, or until it was annulled by the court for any sufficient reason.

The appointment of a receiver is largely a matter of sound judicial discretion, and after the trial court has weighed and considered the facts and appoints, or refuses to appoint a receiver the appellate court will not interfere with the exercise of that discretion.The appointment of a receiver to take charge of property pendente lite is generally considered an interlocutory order and not appealable.High on Receivers, Secs. 25, 26.

Similar questions have been passed upon by this court both prior to and since the adoption of our Constitution, and the rule has been established that a final judgment is that adjudication that disposes of the case as to all the parties and which finally disposes of the subject-matter of the litigation on the merits of the case.North Point Irr. Co. v. Utah Canal Co., 14 Utah 155, 46 P. 824;Champ v. Kendrick, 30 N.E. 635.

Bouvier defines a final judgment as "A final judgment is a judgment which ends the controversy between the parties litigant."

The general rule recognized by the courts of the United States, and by courts of most, if not all of the states is that no judgment or decree will be regarded as final within the meaning of most of the statutes in the several states in reference to appeals unless all issues of law and of fact necessary to be determined were determined and the case completely disposed of so far as the court had power to dispose of it.Freeman on Judgments, Sec. 34.

In the case of the North Point Irr. Co. v. Utah & Salt Lake CanalCo., 14 Utah, this court held that an order made pendente lite granting a temporary injunction, was not a final judgment from which an appeal would lie, under Sec. 9, Art. 3 of the Constitution.

In Eastman v. Gurrey, 14 Utah 169, 46 P. 828, this court held that the constitution had taken away the right of appeal from an order vacating and setting aside a judgment, and that such an order was not a final judgment from which an appeal would lie.

In the case of White v. Pease, 15 Utah 170, 49 P. 416, this court held that an order refusing to grant a new trial came within the rule laid down in the above cases, and that such an order is not a final judgment from which an appeal would lie to this court under our constitution.

In re Lewis P. Kelsey, 12 Utah 393, 43 P. 106, this court held that an order requiring a party to pay temporary alimony, costs and counsel fees during the pendency of a suit was not a final judgment from which an appeal would lie.

In the well considered case of the Church v. United States, 5 Utah 394, 16 P. 723, under Sec. 692 R. S., U.S., the territorial supreme court held that an order appointing a receiver is not a final decree and could not be appealed from, to the Supreme Court of the United States.The section referred to provides that appeals shall be allowed from final judgments.

In Nelson v. Southern Pacific Co., 15 Utah 325, 49 P. 644, it is held that no appeal lies from an order overruling a motion for a new trial because the order is not final.

Under the practice and procedure of the State of Nevada, it is held that an appeal will not lie from an interlocutory order appointing a receiver, and that the action of the inferior court in such matters can only be revised upon appeal from a final judgment in the case.Meadow Valley Min. Co. v. Dodds, 6 Nev. 261.

In Pennsylvania, where an appeal lies only from a final order or decree, an order granting an injunction and appointing a receiver upon the filing of a bill for the settlement of partnership affairs is not such a final order within the intent of the statute, and no appeal will lie therefrom, it being a purely interlocutory matter.Holden's Administrator v. McMakin, Par. Eq. Cas. 270.

In Ohio it is held that an order appointing a receiver is not a final order from which an appeal will lie.Eaton & Hamilton R. Co. v. Varnum, 10 Ohio St. 622.

In Illinois, in the absence of legislation, a writ of error will not lie from a purely interlocutory order appointing a receiver, no final decree having been rendered determining the rights of the parties.Coates v. Cunningham, 80 Ill. 467.

Since the above decision was rendered statutes have been passed in Illinois allowing appeals from interlocutory orders for the appointment of receivers.

In Tennessee, an order appointing a receiver being within the discretion of the court for the purpose of preserving the property pendente lite, cannot be appealed from.Baird v. TurnpikeCo., 1 Lea. 394;Bramley v. Tyree, 1 Lea 531; Roberson v. Roberson, 3 Lea 50.

Such an interlocutory order must be reversed or modified by the same court, otherwise it can only be corrected upon appeal after final hearing.Johnston v. Hanner, 2 Lea 8.

So in California, under the statutes regulating appeals, no appeal lies from an order appointing a receiver.French's Bank Case, 53 Cal. 495;Emeric v. Alvarado, 64 Cal. 529, 2 P. 418.

In Kansas, an order appointing a receiver is not a final order involving the merits of the action, but a mere interlocutory order from which no appeal lies.Hottenstein v. Conrad, 5 Kan. 249;Boyd v. Cook, 40 Kan. 675, 20 P. 477.

In Texas, the appointment of a receiver upon an interlocutory order, there being no adjudication upon the merits of the case, is not a final judgment from which an appeal will lie.Lumber Co. v. Williams, 71 Tex. 444, 9 S.W. 436.

In Mississippi an appeal will not lie from an order vacating the appointment of a receiver.Hanon v. Weil69...