Riordan v. Horton

• Decision Date: 09 March 1908
• Parties: RIORDAN ET AL. v. HORTON ET AL
• Court: Wyoming Supreme Court

94 P. 448

16 Wyo. 363

RIORDAN ET AL. v. HORTON ET AL

Supreme Court of Wyoming

March 9, 1908

ERROR to the District Court, Weston County, HON. CARROLL H PARMELEE, Judge.

The material facts are stated in the opinion.

Reversed and remanded.

Metz Sackett & Metz and N. K. Griggs, for plaintiffs in error.

It is proper to permit the petition in error to be amended as to any matter contained in the record, proper to be considered on error. (R. R. Co. v. Ingalls, 13 Neb. 279; Spencer v. Thistle, 13 Neb. 201; Robinson v Kilpatrick, 50 Neb. 795; Hildebrant v. Brewer, 5 Tex. 566; Ry. Co. v. Bailey, 7 Ohio St. 88; Humphries v. Spafford, 14 Neb. 488; Bazzo v. Wallace, 16 Neb. 293; Scott v. Spencer, 44 Neb. 93; Darries v. Darries, 58 Mo. 222.)

The receiver's compensation could not legally be allowed without notice to the plaintiffs in error, the parties chiefly interested as owners of a majority of the capital stock of the bank. (Alderson on Rec. (Ed. 1905), 859; Bank v. Crysler, 67 F. 388, 390; Jorelman v. McPhee, 76 Pac, 922; Hayden v. Trust Co., 55 Ill.App. 241; Bank v. Frankenthal, 55 Ill.App. 400.) The proper time for the allowance of compensation is at the close of the receivership; and until that time full compensation will not be made, and the allowance will not be made without proof. (Maxwell v. Mfg. Co., 82 F. 214; In re Pelican Saw Mill Co., 19 So. 686.)

In view of the evidence as to the understanding of the parties at the time of Horton's appointment, the allowances were excessive in the extreme. The evidence strongly supports the theory that he was to receive no compensation, and that would be the usual rule, since he was a stockholder and volunteered his services. (O'Brien v. Harriman, 1 Tenn. Ch., 467; Barry v. Jones, 27 Am., 742; In re Cooper, 93 N.Y. 507; In re Hopkins, 32 Hun, 619; In re Hodgeman's Est., 35 N.E. 660; Bassett v. Miller, 8 Md., 551; Walford v. Powers, 85 Ind. 294; Soc. v. Brumfield, 102 Ind. 146; Kellar v. Orr, 106 Ind. 406; Polk v. Johnson, 65 N.E. 537; Steel v. Halladay, 25 P. 77; Ross v. Conwell, 34 N.E. 752; In re Mulligan's Est., 27 A. 398; 12 Ency. L. (2d Ed.), 1286; Beach on Trustees, Sec. 748; In re Est. of Davis, 4 P. 22; Bate v. Bate, 11 Ky. 639; McCaw v. Blewit, 2 McCord's Eq., 90.) But upon the theory that he was entitled to full compensation the amount allowed is excessive. (Schwartz v. Oil Co., 25 A. 1019; Spears v. Thomas (Ky.), 70 S.W. 1060.)

Stotts & Blume, for defendants in error.

The assignments of error are not sufficiently definite to be considered. (2 Ency. Pl. & Pr., 942, 955, 956; Parish v. St. Paul (Minn.), 87 Am. St. 374; Gude v. Dakota, &c., Co. (S. D.), 58 Am. St. 860; Slotz v. James (Ia.), 59 Am. St. 348; Churchill v. White (Neb.), 76 Am. St. 64; Main v. Main (Ariz.), 60 P. 888; Wisler v. Lawler (Ariz.), 62 P. 695; Warl v. Sherman (Ariz.), 64 P. 434; Barry v. Barry (Kan.), 59 P. 685; Dewade v. Miera (N. M.), 61 P. 125; Green v. Gibson (Tex.), 18 S.W. 494; Lamance v. Byrnes, 17 Nev. 197; Dennis v. Coughlin (Nev.), 58 Am. St. 761; Lathrop v. Tracy (Colo.), 65 Am. St. 229; Dill v. Marvin (Fla.), 79 Am. St. 171; Miller v. State, 3 Wyo. 657; 29 P. 136; Charolean v. Shields et al (Ariz.), 76 P. 821; Whitacre v. Nichols (Okla.), 87 P. 865.)

The judgment complained of is not identified by the petition in error, and this is necessary. (Merly v. Boulon, 104 Cal. 262; Allport v. Kelly, 2 Mont., 343; Bishop v. Owens (Cal.), 89 P. 844; Board v. Shaffner, 10 Wyo. 181.)

The filing of petition in error is jurisdictional, and to permit the amendment requested would be doing indirectly what could not be done directly. No errors not now properly before the court can be considered. (Smyth v. Boswell (Ind.), 20 N.E. 263; Jarvis v. Chase County (Neb.), 97 N.W. 831; Deuch v. Seaside Lodge, 26 Ore. 385; 2 Ency Pl. & Pr., 239-245; Crawford v. Kansas City, 45 Kan. 474; Cogshall v. Sperry, 47 Kan. 448; 28 P. 154; Nowland v. Horace, 8 Kan.App. 722; 54 P. 919; Brewer v. Moyer (Kan.), 84 P. 719; Smetters v. Ramey, 14 Ohio St. 287; Burke v. Taylor, 45 Ohio St. 444; Dolph v. Nickum, 2 Ore. 202; Cook v. Challis (Kan.), 40 P. 643; Lavalle v. Skelly, 90 N.Y. 549; Arkansas v. Ry. Co. (Mo.), 80 S.W. 336; Bank v. Wells (Cal.), 90 P. 981; Ass'n. v. Wilkins, 71 Cal. 626; 12 P. 798; Hastings v. Halleck, 10 Cal. 31; Koutnick v. Koutnick, 196 Ill. 162; Fry v. Bennett, 7 Abb. Pr., 352; 16 How. Pr., 385; Piper v. Van Buren, 27 Hun, 384; Patterson v. McCunn, 38 Hun, 531; Baden v. Bertenshaw, 68 Kan. 32; James v. Higginbotham, 60 Neb. 203; Painter & Co., 7 Ind.App. 642; Cannon v. Cannon, 66 Tex. 682; Evans v. Printing Co., 4 Tex. Civ. App. 327; Blecker v. Shoff, 83 Iowa 265.)

Unless the motion for new trial is assigned as error no errors embraced or that should be embraced in such motion can be considered. (Martin v. Cassert (Okla.), 37 P. 586; Beal v. Ins. Co., 7 Okla. 285; Douglas Co. v. Sparks, 7 Okla. 259; Crawford v. Kansas City, 45 Kan. 474; McPherson v. Manning, 43 Kan. 129; Landauer v. Hoagland, 41 Kan. 520; Clark v. Schnur, 40 Kan. 72; Carson v. Frink, 27 Kan. 524; Binn v. Adams, 54 Kan.. 615; Coffeyville v. Dolley (Kan.), 84 P. 719; Turner v. Franklin (Ariz.), 85 P. 1070; Lemon v. Ward, 3 Ariz., 219; James v. Higginbotham, 60 N.W. 203; 82 N.W. 625; Beckwith v. Dierks L. Co. (Neb.), 106 N.W. 442; Doorley v. Buford (Okla.), 49 P. 936.)

Where the appeal is taken more than one year after the rendition of the judgment, and the motion for new trial is not assigned as error, the judgment is not reviewable. (Crawford v. Kansas City, 45 Kan. 474; Dyal v. Topeka, 35 Kan. 62; Osbourne v. Young, 28 Kan. 769; Shattuck v. Board, 63 Kan. 849; Mech. Savings Bank v. Harding, 65 Kan. 655; Blockwood v. Shaff (Kan.), 24 P. 423; McCrea v. McCrew, 9 Idaho, 382; Smith v. State, 48 Ark. 149; Dowty v. Pepple, 58 Ohio St. 395; Young v. Schallenberger, 53 Ohio St. 291.)

The evidence does not sustain the proposition that the receiver was to receive only a nominal compensation. The objection that the allowance was made upon an ex parte hearing is overcome by the fact that the complaining parties were afterwards given a hearing upon their application. The amount to be allowed a receiver is to be determined by the court, and the matter rests in its discretion. (State v. Bank, 61 Neb. 496; Bank v. Badger (Wis.), 79 N.W. 21; Ford v. Ford (Wis.), 59 N.W. 464; In re Bank, 57 Minn. 361; Cake v. Mohunn, 164 U.S. 311.) Upon the evidence the amount allowed was no more than was reasonable.

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

SCOTT, JUSTICE.

This matter arose in the district court of Weston County and involves the validity of an order fixing and allowing Fred Horton certain amounts for compensation as receiver of the Bank of Newcastle. Plaintiffs in error as stockholders of the bank complain that the amounts so allowed were excessive and unwarranted, and bring the case here on error.

1. The defendants in error move to dismiss the proceedings in error on the following grounds:

First--That they were not brought within one year after the rendition of the judgment.

Second--That the petition in error does not give the date of any judgment, and, therefore, fails to specify or identify the judgment complained of.

Third--That if any judgment at all is complained of in the petition in error, it must be a judgment rendered in November, 1905, and the proceedings in error were not instituted within one year from the rendition of that judgment.

The petition in error is as follows: "Comes now the plaintiffs in error, and say, that at the March term of the district court of the Fourth Judicial District in and for Weston County, Wyoming, the defendants in error recovered judgment by consideration of said district court, against the plaintiffs in error, in that certain action pending therein, entitled as follows: 'In the matter of the receivership of the Bank of Newcastle' and 'Mike Riordan, plaintiff, and W. H. Kilpatrick, R. J. Kilpatrick and Samuel D. Kilpatrick, co-partners under the name and style of Kilpatrick Brothers, interventors, vs. The Bank of Newcastle and Fred Horton, as receiver of the Bank of Newcastle, defendants.'

"That there is manifest error in the record of the proceedings in the trial of said cause.

"That the court erred in overruling the motion of plaintiffs in error in said cause, and in rendering judgment therein in favor of the defendants in error and against the plaintiffs in error, and in its findings of fact and conclusions of law therein. That said findings and judgment are contrary to law and the evidence.

"Plaintiffs in error, therefore, pray that said judgment be reversed and that they be restored to all things they have lost by reason thereof.

"That this court direct the clerk of said district court to forward all original papers and files in said cause and all journal entries made therein, deemed necessary by this court to a full understanding and investigation of said cause and that petitioners have their costs herein."

The plaintiffs in error oppose this motion and ask permission to amend the petition by making it more definite and certain as to the term at which the judgment complained of was rendered and also by inserting after the words, "That the court erred in overruling the motion of plaintiffs in error,' the words, "for a new trial." The right to so amend is vigorously contested.

We have no statute specially regulating amendments in proceedings in error. Such amendments by analogy, we think, should conform as near as may be to the provisions of the statute with reference to amendments of pleadings and proceedings in the district courts. Under those provisions no amendment is authorized which will change substantially the cause of action. In such a case it...