State v. State Bank & Trust Co.

• Decision Date: 22 December 1913
• Docket Number: 2,083.
• Citation: 137 P. 400,36 Nev. 526
• Parties: STATE EX REL. SPARKS ET AL. v. STATE BANK & TRUST CO. ET AL. ESMERALDA COUNTY v. WILDES.
• Court: Nevada Supreme Court

137 P. 400

36 Nev. 526

STATE EX REL. SPARKS ET AL. v. STATE BANK & TRUST CO. ET AL.

ESMERALDA COUNTY v. WILDES.

No. 2,083.

Supreme Court of Nevada

December 22, 1913

Appeal from District Court, Ormsby County; Frank P. Langan, Judge.

Proceedings by the State, on relation of John Sparks and others, against the State Bank & Trust Company and others, in which the defendant bank was adjudged insolvent and a receiver appointed, and in which Esmeralda county filed an intervening petition. From an order directing the preferential payment of the intervening petitioner's claim, Frank L. Wildes as receiver, appeals. Appeal dismissed.

History of the Case.

On October 23, 1907, the State Bank & Trust Company, a corporation, which had theretofore been engaged in the general banking business with its principal place of business at Carson City, Ormsby county, Nev., was adjudged insolvent by the district court of the first judicial district, in and for Ormsby county. The State Bank & Trust Company, as a corporation, had, prior to the date mentioned, conducted and maintained branches in several parts of the state, one of which was located in Goldfield, Esmeralda county. Subsequent to the action of the district court in adjudging the institution insolvent, and on the 18th day of May, 1908, the court appointed Frank L. Wildes receiver of the insolvent institution. Thereafter the said Wildes duly qualified as receiver and entered upon the discharge of his duties.

On October 19, 1911, the petitioner, Esmeralda county, filed its original petition in the district court of the first judicial district, by which said petition the county prayed the court to decree that a certain sum of money, to wit, the sum of $4,870.03, alleged to have been deposited by the county treasurer of Esmeralda county in the Goldfield branch of the State Bank & Trust Company, be held to be a special deposit and that the court make an order directing the receiver of the State Bank & Trust Company to pay Esmeralda county the sum of $4,870.03, with costs. To an amended petition filed by Esmeralda county as petitioner, the receiver, Wildes, answered, denying that the money placed by the county treasurer of Esmeralda county in the Goldfield branch of the State Bank & Trust Company was placed on special deposit, or for safe-keeping or that the same was received or accepted by the State Bank & Trust Company as a special deposit, or for safe-keeping. In his answer, the receiver admitted that the sum specified had been deposited with the State Bank & Trust Company at its Goldfield branch by E. Hardy, the county treasurer, but denied that the same was deposited for the use and benefit of the county.

A hearing on the petition was conducted before the court, at the conclusion of which the court rendered judgment in favor of petitioner county, and entered its decree that the sum of $4,870.03 was received by the Goldfield branch of the State Bank & Trust Company from E. Hardy, county treasurer of Esmeralda county, as a special deposit; that the same was a preferred claim in favor of Esmeralda county and against the assets of the State Bank & Trust Company, which came into the hands of the receiver, Wildes; that the sum of $974 had been paid by said receiver on said claim by way of dividends; that there remained a balance due Esmeralda county on said preferred claim of $3,896.03. Whereupon an order was made by the said court directing the said Frank L. Wildes, receiver of the State Bank & Trust Company, to pay to Esmeralda county the sum of $3,896.03 out of any funds on deposit in his hands as receiver and to reimburse said county for its costs expended in the proceeding. Following the service of this order upon the receiver, the court made an order that the said Frank L. Wildes, as receiver of the State Bank & Trust Company, be permitted to appeal to this court from the decision and judgment theretofore entered.

Following the perfecting of the appeal on the part of the receiver Esmeralda county, the petitioner and respondent herein, filed its motion to dismiss the appeal upon the ground that the appellant Frank L. Wildes, as receiver, had no interest in the proceedings; that he was not an aggrieved party within the meaning of section 5327, Revised Laws; that neither the order of the district court directing the receiver to pay Esmeralda county the sum of money stated, nor the order adjudging the said sum a special deposit, or preferred claim, were orders from which an appeal could be prosecuted under the laws of Nevada.

Mack, Green & Heer, of Reno, for appellant.

M. A. Diskin, Dist. Atty., of Goldfield, for respondent.

McCARRAN J.

The right of appeal to this court is one based entirely on statute, and this court is prohibited from taking jurisdiction unless the party appealing has, in the first instance, the statutory right of appeal.

Section 5327 Revised Laws of Nevada prescribes: "Any party aggrieved may appeal in the cases prescribed in this title. The party appealing shall be known as the appellant, and the adverse party as the respondent."

In the case of Kapp v. Kapp, 31 Nev. 70, 99 P. 1077, 21 Ann. Cas. 599, this court cited approvingly its former decision rendered in the case of the State v. Langan, 29 Nev. 459, 91 P. 737. wherein it said: "An appeal to this tribunal is a matter purely of statutory right, and, unless authorized by statute, any attempted appeal taken from an order not appealable is void, and therefore could not confer any jurisdiction upon this court to act."

The right of receivers to appeal from orders of the court by which they were appointed has been variously dealt with by the several jurisdictions. The Supreme Court of California, in the light of a special provision of the Code of Civil Procedure in that state (section 963, Code of Civil Procedure), held that an order directing a payment of a preferred claim is appealable. In re Smith, 117 Cal. 505, 49 P. 456. It was a rule under the old chancery practice, and this rule is adhered to in states where that practice is unchanged by statute, that a receiver may appeal from any order where such order might affect his proper duties. It is almost universally held that a receiver may appeal from any order which affects his personal rights, such as passing upon his accounts, or fixing his fees or compensation. In the case of People v. St. Nicholas Bank, 77 Hun, 159, 28 N.Y.S. 407, the court held that a receiver, having a right to apply to the court for instruction, was entitled to instruction by the entire court, and therefore might appeal from a special to a general term. This decision, however, was rendered in the light of a system of procedure peculiar to the statutes of New York. In an instance where the estate as a whole is interested, the receiver thereof may appeal from a judgment against him officially. In a case where an action is commenced by a party not interested in the estate, the receiver may appeal from an order establishing the party's claim against the estate. In a contest between two sets of creditors as to the distribution of the funds, the receiver has no interest and is not entitled to the right of appeal. Alderson on Receivers, § 246; Battery Park Bank v. Western Carolina Bank, 127 N.C. 432, 37 S.E. 461.

Speaking upon this subject the Supreme Court of North Carolina in the Battery Bank Case, supra, a case somewhat analogous to the one at bar, said: "The receiver is the agent of the court. Its judgment is full protection to him, and it is a rare case that he can be justified to appealing, and certainly he is not when, as in this instance, the question is merely between two sets of creditors as to the distribution of the fund."

In the case at bar the petitioner county sought to have itself placed in that set of creditors who, by reason of the nature of their deposits with the defunct institution, were entitled to have their claims adjudged to be preferred and thereby segregated from that other set of creditors who, by reason of the nature of their deposits with the institution, were general creditors and only entitled in law to share pro rata the accumulation or residue of the estate. As we have already stated, a receiver in an instance of this character has the right of appeal when the court, of which he is the representative, charges, or refuses to allow, items, by which action the court does him wrong personally. His right of appeal, however, is limited to that peculiar class of orders or decisions in which, or by reason of which, he is the person interested, or may be personally affected, or, by which the estate as a whole is affected.

A receiver appointed by a court to collect the assets of an insolvent institution and to administer its affairs cannot be said to be personally interested in the segregation or distribution of the funds that may, by reason of his activities, or the performance of his duties, come into his hands, unless he occupies the dual capacity of both creditor and receiver, in which instance his right of appeal, as a creditor, from an order or decree of the lower court might be sustained upon the theory that, being personally interested in the prorating or distribution of the estate, he could invoke by appeal or review a mandate of the higher court to enforce a right of which he might have been deprived by the lower court, or to relieve him of a wrong inflicted upon him. As receiver, acting in his official capacity, and without personal interest, he is bound by the orders of the court of which he is the appointed representative when those orders affect only those parties who, by reason of their relationship as creditors, are interested in the equitable distribution of the estate, and in no wise affect him personally.

If a receiver in a case of...