State ex rel. St. Louis and Kirkwood Railroad Company v. Hirzel
| Decision Date | 09 February 1897 |
| Citation | 38 S.W. 961,137 Mo. 435 |
| Parties | The State ex rel. the St. Louis and Kirkwood Railroad Company et al. v. Hirzel, Judge, et al |
| Court | Missouri Supreme Court |
Original Opinion of February 9, 1897, Reported at: 137 Mo. 435.
OPINION
ON MOTION FOR REHEARING.
On reconsideration of the opinion, filed heretofore in this cause, the majority of the court agree to adhere thereto, and to overrule the motion for rehearing, Barclay C. J., and Gantt, Macfarlane, Robinson, and Brace, JJ., concurring; Sherwood and Burgess, JJ., dissenting.
ON MOTION FOR REHEARING.
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Not being able to concur with the majority of my associates in their conclusion that, under the act of 1895, an appeal from the order of the circuit court overruling a motion to vacate an order appointing a temporary receiver, and the execution of an appeal bond under the general statutes, operated as a suspension of the authority of the receiver under the order of the court appointing him, in the absence of an order by the court to that effect, I think it proper to state briefly the reasons of my non-concurrence.
The English practice in equity cases is that an appeal does not stay proceedings unless the court, upon application in special cases, makes a special order to that effect, but, in case of refusal by the trial court, the order may be made by the appellate court in its discretion. Waldo v. Caley, 16 Ves. Jr., loc. cit., 213; Willan v. Willan, 16 Ves. Jr. 216; The Warden etc., of St. Paul's v. Morris, 9 Ves. Jr. 316; Barrs v. Fewkes, L. R. 1 Eq. Cas. 392; 2 Daniell's Chancery Pl. & Pr., * 1467; General Order House of Lords, 15 Ves. Jr. 184.
The English practice was followed in Slaughter-house cases, 10 Wall. 273, 19 L.Ed. 915. In that case (loc. cit. 296) it is said: "Independent of statutory regulations, the term supersedeas has little or no application in equity suits, as the rule is well settled in the English courts that an appeal in chancery does not stop the proceedings under the decree from which the appeal was taken without the special order of the subordinate court." See Hovey v. McDonald, 109 U.S. 150, 27 L.Ed. 888, 3 S.Ct. 136.
Different rules upon the subject prevail in different jurisdictions; for instance, it is held otherwise in New York and New Jersey. Green v. Winter, 1 Johns. Ch. 77; Halsey v. Van Amringe, 4 Paige Ch. 279; Gregory v. Dodge, 3 Paige Ch. 90; Messonnier v. Kauman, 3 Johns. Ch. 66; Schenck v. Conover, 13 N.J.Eq. 31.
Mr. Daniell in his work on Chancery Pleading and Practice, note 3, * page 1467 [6 Ed.], says the rule of practice in the United States is different from that in England.
It was held by this court in State ex rel. v. Dillon, 96 Mo. 56, 8 S.W. 781, that the operation of a writ of injunction is not suspended by an appeal and statutory supersedeas bond, and it is difficult to see, if an appeal with a supersedeas bond does not operate to suspend an injunction, why it operates to suspend a receiver. There seems to be no difference in principle. They are both self-enforcing orders and under such circumstances it has been said: "And when a judgment is self-enforcing, a supersedeas does not alter the state of things created by the judgment from which the appeal is prosecuted." State ex rel. v. Woodson, 128 Mo., at p. 518. See, also, Elliott, App. Proc., sec. 392, and cases cited.
In the Woodson case there is cited with approval Walls v. Palmer, 64 Ind. 493, which was an appeal from a judgment suspending an attorney from practice, and it was held that the judgment executed itself, except as to the collection of costs, and that granting the appeal and the execution of an appeal bond only suspended the collection of costs, and did not allow the attorney to practice his profession pending the appeal.
And in State ex rel. v. Meeker, 19 Neb. 444, 27 N.W. 427, an officer had been removed for misconduct by a county board, and it was held that the filing of a supersedeas bond did not operate to reinstate him.
So in Swing v. Townsend, 24 Ohio St. 1, it was held that the appointment of a receiver is not vacated or suspended by an appeal, and that the powers and duties of the receiver still continue, notwithstanding the appeal. This seems to be the generally accepted doctrine.
The object and purpose of a receiver's appointment is the preservation and protection of the property in litigation. His appointment determines no right, nor does it in any way affect the title to the property. He is truly the hand of the court, holding the property for him or those from whose possession it was taken. He gives bond for the faithful discharge of the trust imposed upon him by virtue of his appointment, and is at all times under the immediate control and supervision of the court. He acts impartially between the parties interested, with favoritism toward none. When he takes charge of the property it is in the hands of the court, that is, in the custody of the law.
It is not so with respect to the defendant in the principal case if by taking an appeal from the order refusing to vacate the order appointing the receiver and executing a bond which simply covers the cost attending the appeal and nothing more. The legal effect of the appeal is to suspend, or remove, the receiver. Whatever the final result may be plaintiff will have no remedy upon the bond for his debt, even though the property should before the determination of the appeal be permitted to go to waste, spoliation, or deterioration pending the litigation, as the liability of the obligors in the appeal bond in no way depends upon the ultimate determination of the litigation, except as to the cost.
If the effect of the appeal is to suspend or remove the receiver while it is pending, then, in order to thwart the action of the court in any such case, the party desiring to so do would have nothing to do but to appeal from the order...
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