State v. Hirzel

• Decision Date: 09 February 1897
• Citation: 38 S.W. 961,137 Mo. 435
• Court: Missouri Supreme Court
• Parties: STATE ex rel. ST. LOUIS & K. R. CO. v. HIRZEL et al.

38 S.W. 961

137 Mo. 435

STATE ex rel. ST. LOUIS & K. R. CO. v. HIRZEL et al.

Supreme Court of Missouri.

February 9, 1897.

In banc. On rehearing. Denied.

For former opinion, see 37 S. W. 921.

PER CURIAM.

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.

BURGESS, J. (dissenting).

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 nonconcurrence.

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. 213; Willan v. Willan, Id. 216; Warden, etc., v. Morris, 9 Ves. 316; Barrs v. Fewkes, L. R. 1 Eq. 392; 2 Daniell, Ch. Prac. *1467; General Order House of Lords, 15 Ves. 184. The English practice was followed in Slaughterhouse Cases, 10 Wall. 273. In that case 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." Hovey v. McDonald, 109 U. S. 150, 3 Sup. 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. 80; Halsey v. Van Amringe, 4 Paige, 279; Gregory v. Dodge, 3 Paige, 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, p. 1467, 6th Ed.), says the rule of practice in the United States is different from that in England. It was held by this court in State 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 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 v. Woodson, 128 Mo. 497, 31 S. W. 105. See, also, Elliott, App. Proc. § 392, and cases cited. In that 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 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 are 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 towards 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...