Taintor v. St. John

• Decision Date: 27 February 1915
• Docket Number: 3473,3474.
• Citation: 146 P. 939,50 Mont. 358
• Parties: TAINTOR v. ST. JOHN.
• Court: Montana Supreme Court

146 P. 939

50 Mont. 358

TAINTOR v. ST. JOHN.

Nos. 3473, 3474.

Supreme Court of Montana

February 27, 1915

Appeal from District Court, Rosebud County; Geo. W. Pierson, Judge.

Action by C. M. Taintor against C. C. St. John. From a judgment for plaintiff and from orders annulling an order appointing a receiver and denying a new trial, plaintiff appeals. Appeal from order annulling the appointment of the receiver dismissed. Order denying new trial affirmed. Judgment ordered modified and affirmed as modified.

D. P B. Marshall, of Sheridan, Wyo., O. F. Goddard, of Billings and Geo. W. Farr, of Miles City, for appellant.

Enterline & LaFleiche, of Sheridan, Wyo., and Loud, Collins, Campbell Wood & Leavitt, of Forsyth, for respondent.

HOLLOWAY J.

After C. M. Taintor and C. C. St. John had been jointly interested in certain range live stock and equipment for carrying on the business for a time, this suit was instituted by Taintor against St. John to terminate the relationship, for an accounting, and for the appointment of a receiver. On January 23, 1912, after a hearing at which both parties were present in person and by counsel, a receiver was appointed. On June 28th following the cause was committed to a referee to take testimony and report findings. Before the conclusion of the hearing the parties effected a compromise of their differences, and entered into an agreement of settlement, by the terms of which, after the payment of certain stated amounts, the residue of all net proceeds arising from the sale of steer cattle should be divided between the parties equally. All questions affecting the receivership were left for determination by the court. On October 11th the court entered an order, and on November 25th a supplemental order, directing the receiver with reference to the disposition of the property. In October, 1912, February, 1913, and March, 1913, the receiver made his reports to the court, and these reports were approved. On March 4, 1913, the defendant moved the court to vacate and dissolve the order appointing the receiver, and this motion was sustained in an order which reads as follows:

"Whereas it appears that there is no further need for the continuance of the receiver in this cause, John T. Logan, heretofore appointed receiver in this cause, is hereby discharged, and his bond exonerated from further liability, and, whereas, it further appearing to the satisfaction of the court that no cause existed for the making of the original order appointing said receiver in this cause, and that such order was improvidently and improperly made, that the original order appointing John T. Logan as such receiver be, and the same is hereby, vacated and annulled."

In September, 1912, the referee made his report, and on September 25, 1913, the court rendered its final judgment that plaintiff take nothing, and that defendant recover from plaintiff the sum of $5,675.42, which was determined to be the amount of the expenses of the receivership over what would have been incurred in transacting the business if a receiver had not been appointed. From that judgment and from an order denying him a new trial, plaintiff has appealed.

The Constitution provides for appeals to the Supreme Court from the district courts under such regulations as may be prescribed by law. Article 8, § 15. Section 7098, Revised Codes, enumerates the judgments and orders from which appeals are allowed. "An appeal is authorized by statute only and, unless the judgment or order which it is sought to have reviewed in this mode falls fairly within the enumeration of appealable orders or judgments made by the statute, the appeal does not lie." In re Tuohy's Estate, 23 Mont. 305, 58 P. 722; State ex rel. Jackson v. Kennie, 24 Mont. 45, 60 P. 589. Since an order annulling an order appointing a receiver is not one of the judgments or orders enumerated in section 7098, above, no appeal lies therefrom, though such order is reviewable upon appeal from the final judgment.

Counsel for appellant concede that the trial court had authority to...