Thum v. Pyke

• Decision Date: 28 December 1898
• Citation: 55 P. 864,6 Idaho 359
• Parties: THUM, RECEIVER, v. PYKE, RECEIVER, AND OGDEN SAVINGS BANK, INTERVENER
• Court: Idaho Supreme Court

55 P. 864

6 Idaho 359

THUM, RECEIVER, v. PYKE, RECEIVER, AND OGDEN SAVINGS BANK, INTERVENER

Supreme Court of Idaho

December 28, 1898

NOTICE BY TELEGRAM-MISTAKE IN SAME-VACATING JUDGMENT.-A mistake in the transmission of a telegram by the judge of the court for which the party is in no way responsible, and whereby a party is deprived of a hearing upon the trial of a cause, is sufficient ground for vacating a judgment.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Order affirmed, and cause remanded.

Lyttleton Price, for Appellant, cites no authorities on point decided.

E. E Chalmers, for Defendant Pyke, files no brief.

David Evans, for Intervener.

This appeal is not taken from a final judgment, nor is it authorized by any of the subdivisions of section 4807 of the Revised Statutes of Idaho as amended by the Session Laws of 1895, page 142, and should therefore be dismissed. (Thomas v. Thomas, 10 Colo. App. 170, 50 P. 211; Eastman v. Gurrey, 14 Utah 169, 46 P. 828; Thiessen v. Riggs, 5 Idaho 21, 46 P. 829; Reitmeir v. Siegmund, 13 Wash. 624, 43 P. 878; Gray v. Haish, 2 Kan. App. 145, 43 P. 293.)

HUSTON J. Sullivan, C. J., concurs, QUARLES, J., concur in the conclusion.

OPINION

HUSTON, J.

The plaintiff, as receiver of C. Bunting & Co., bankers, brings this action against the defendant, F. A. Pyke, receiver of C Bunting & Co., merchants, and the Ogden Savings Bank intervenes. All of these parties are corporations organized under the laws of Utah, the first two doing business in Idaho and having their principal place of business in Blackfoot, in the county of Bingham, in the state of Idaho and the last doing business in Ogden, Utah. Some time in the month of February, 1897, in a suit or suits pending in the district court for Bingham county against said banking and mercantile corporations, receivers were appointed by said court for both said corporations. The receiver of the mercantile corporation has paid, liquidated, and discharged all claims of every kind whatsoever against the said Bunting & Co., merchants, and has asked for his discharge. The plaintiff, receiver of the said Bunting & Co., bankers brings this suit, alleging that "the said banking corporation is the owner of, and there has come into the hands of the plaintiff as such receiver, all of the shares of said corporation C. Bunting & Co., merchants, except such part thereof as the said banking corporation had, before the appointment of this plaintiff as receiver, pledged to other persons," and "that as such receiver this plaintiff is entitled to receive and take all of the assets of every kind and character whatsoever of C. Bunting & Co., merchants. Pyke, receiver of C. Bunting & Co., merchants, makes no defense. The Ogden Savings Bank, having obtained leave of the court therefor, files its complaint and answer in intervention, wherein it alleges that it "is the owner, in the possession, and entitled to the possession of five hundred shares of the capital stock of C. Bunting & Co., merchants, being two-thirds of the entire capital stock of said corporation, there being but seven hundred and fifty shares of said stock only." The intervener then proceeds to set forth the manner in which it became the owner and possessed of said shares of stock, which is, in substance, as follows: That on or about the first day of February, 1897, and prior to the appointment of plaintiff as receiver as aforesaid, the said banking corporation of C. Bunting & Co. executed and delivered its promissory note in favor of said intervener for the sum of $ 15,000 principal, payable sixty days after date, bearing interest at the rate of ten per cent per annum, which said note provided for an attorney's fee of ten per cent in case suit should be brought for the collection thereof, and which said note was made payable at Ogden City, state of Utah. On or about the 1st of April, 1897, suit was instituted by the intervener in the district court for Weber county, Utah, for the collection of said note, and due service was had upon the proper officer of said C. Bunting & Co., bankers, and thereupon a writ of attachment duly issued out of said court in said suit, under which said five hundred shares of the capital stock of said corporation of C. Bunting & Co., merchants, belonging to C. Bunting & Co., bankers, which was then and there in Salt Lake City, Utah, in the hands of W. S. McCornick & Co., bankers, who held the same as the stock of C. Bunting & Co., bankers, as pledged for the payment of a balance of about $ 7,000 due on eight promissory notes, which said notes were made by C. Bunting & Co., bankers, in favor of said McCornick & Co., aforesaid; that judgment was recovered by said intervener upon said note and against said C. Bunting Co., bankers, for the sum of $ 16,812.50 and costs; that execution was issued thereon, and said shares of stock were sold thereunder to the judgment creditor in said suit, it being the highest bidder therefor at said sale, and that on the same day of said sale, for a valuable consideration to them paid by said intervener, the said McCornick & Co. duly assigned, set over, and delivered said five...