Tibbals v. Graham

• Decision Date: 07 October 1936
• Docket Number: 1978
• Citation: 50 Wyo. 277,61 P.2d 279
• Parties: TIBBALS, ET AL. v. GRAHAM, ET AL
• Court: Wyoming Supreme Court

61 P.2d 279

50 Wyo. 277

TIBBALS, ET AL. v. GRAHAM, ET AL

No. 1978

Supreme Court of Wyoming

October 7, 1936

Rehearing denied November 24, 1936; 62 P.2d 285, Reported at 50 Wyo. 277 at 296.

APPEAL from the District Court, Fremont County; V. J. TIDBALL Judge.

Action by Barney N. Tibbals and another against Marshall Graham, as receiver of the Midwest Mines Corporation, and others wherein defendants filed a cross-petition. From an adverse judgment, the plaintiffs appeal. Rehearing denied November 24, 1936. See 62 P.2d 285.

Affirmed.

For the appellant, there was a brief and the cause was argued orally by John J. Spriggs of Lander.

This is a collateral action in ejectment against a prior judgment. Caldwell v. Bigger, 90 P. 1097; O'Keefe v. Beherns, 85 P. 555. The judgment having been rendered by a court having jurisdiction cannot be attacked collaterally, but only by a direct proceeding. Clevenger v. Figley, 75 P. 1001; Ehrsam v. Smith, 60 P. 740; Priest v. Robinson, 67 P. 850. The judgment of confirmation is a final judgment free from collateral attack. 16 R. C. L. 83; Voorhees v. Bank, 10 Peters 450. This action cannot be maintained since it is a collateral attack on a judgment regularly entered. Goodman v. Cretcher, 294 P. 868. Errors in the proceedings must be corrected by appeal or direct attack. Pattison v. Bank, 247 P. 643; Citizens Bank v. Bogges, 294 P. 185. The statute of lis pendens, Sec. 89-825, R. S. 1931, barred subsequent adverse claims. Midwest Mines Corporation was a party to cases 4182 and 4623. 15 R. C. L. 1009 and cases cited. A party before the court in several capacities is bound by the judgment in all capacities. Emerson v. Elevator Company, (Wyo.) 297 P. 392; Corcoran v. Chesepeake, 94 U.S. 741; Williams v. Southern Pac., 202 P. 350; Bowman v. Parks, 147 N.W. 850. The judgment is conclusive as to all matters litigated or that might have been pleaded. Baker v. Leavitt, 153 P. 1099; Prince v. Gosnell, 149 P. 1163; El Reno v. Cleveland, 107 P. 163. The doctrine of res judicata is that a matter once decided is finally decided. Carnes v. Carnes, 64 S.W. 877; Woodworth v. Town, 122 P. 225; Southern P. Ry. Co. v. U.S., 168 U.S. 24. A receiver is a mere custodian and not even a necessary party. High on Receivers, 4th Ed. 326, 34 Cyc. 258. A receiver has only the title of an insolvent corporation. 23 R. C. L. 121 and cases cited. Bank v. Cook, 12 Wyo. 492. If a receiver's possession is wrong, he may be sued. 23 R. C. L. 82 and cases cited. A court order is no protection to a receiver, if it be erroneous. Baker v. Tramway, 29 A. L. R. 1464, and a receiver is liable to punitive damages. Garden, Receiver, v. Martil, 10 A. L. R. 1054. The only inquiry that can be made is whether the court had jurisdiction in case 4623. State v. District Court, (Wyo.) 238 P. 545; May v. Penton, (Wyo.) 16 P.2d 35. A writ of prohibition will issue to prevent a relitigation of matters in a collateral proceeding, such as this. Oldfield v. Court, 20 P.2d 671; Bell v. Bell, 39 P.2d 630. Jurisdiction exists when the judgment of the court is invoked. Columbus Company v. Columbus, 249 U.S. 399. Defendant receiver attempts to argue that the court gave no permission to sell the receivership property, but the property was merely a leasehold and was never in receivership. See case 4623. Grigon v. Astor, 43 U.S. 335. Granting of a license to sell is an adjudication upon all facts necessary to give jurisdiction, and is final if not appealed from, so the confirmation of the sale is a final adjudication not subject to collateral attack. Wolf v. Gillis, 219 P. 350; Matthews v. Nefsy, 13 Wyo. 458. The judgment may only be attacked in the manner provided by statute. Parrott v. District Court, (Wyo.) 126 P. 45; Emerson Company v. Riverton Elevator Company, 43 Wyo. 67; State v. District Court, 13 P.2d 571. The defendant receiver now seeks a change of position. Plaintiff by dismissing his petition does not dismiss a counterclaim. Healey v. Wostenberg, 38 P.2d 328; U.S. F. & G. Company v. Nash, (Wyo.) 121 P. 269; Woods v. Cobb, 103 P. 101; Bank v. Frensley, 30 P.2d 885. The judgment appealed from is beyond the pleadings and in contradiction thereof. State v. Court, 238 P. 545. The defendant receiver was a party to the option involved. The contract being pleaded in full, the allegation that it grants an exclusive franchise is not controlling. Company v. City of Casper, 28 Wyo. 452. This court need not investigate other points. The question of collateral attack, and lack of jurisdiction to relitigate matters already adjudicated by a court of competent jurisdiction must determine this case. The sale in case 4623 was a judicial sale. Carter v. Hyatt, 91 P. 62. No fraud is charged even for a direct attack. Venner v. Waterworks Company, 90 P. 625; Bank v. Cook, 12 Wyo. 492. To constitute legal fraud, in any instance, it must be extrinsic fraud, something collateral to the matters before the court. Oil Company v. Brett, 300 P. 633; Graves v. Graves, 10 L.R.A. (L.R.A.) 1; U.S. v. Throckmorton, 98 U.S. 61. The receiver does not pretend to charge extrinsic or admissible fraud. A party cannot complain of invited error. 2 R. C. L. 238; Seaman v. Big Horn, (Wyo.) 213 P. 938. A party is not aggrieved by a consent judgment. Re Gurnsey's Estate, 214 P. 938; 10 R. C. L. 130. The pretended lease was not in existence at the time of the sale and was never in receivership. Nix v. Brogan, 251 P. 755. The court gave its consent to the sale. No other consent than the judgment and order of sale was necessary. The title did not vest in the receiver. 23 R. S. L. 75; Quincy Ry. Co. v. Humphrey, 145 U.S. 82; U.S. Trust Company v. Ry., 150 U.S. 82. The receiver could not interfere with prior rights and liens. Bank v. Cook, 12 Wyo. 492; Waechter v. Wilde, (Wyo.) 38 P.2d 323. No special order or consent was necessary to support the sale. Bolich v. Insurance Company, 164 S.E. 335; Schwabacher v. Schade, 169 P. 783; Trust Company v. Telephone Company, 132 P. 399. The Supreme Court had directed the lower court to make provisions for the sale. The option was presented before sale and approved. The action of the court thereon cannot be attacked in this collateral case. Company v. Stanton, 35 Wyo. 224; Vener v. Denver Water Works Company, 90 P. 625; 16 R. C. L. 70; Ward v. Coleman, 39 P.2d 118. The plaintiffs proved their damages, actual and punitive. It is useless to argue damages on this appeal. There must be a new trial on that issue. A retrial is unnecessary on the question of title. A new trial should be awarded on the question of damages. Since other damages have been sustained since the commencement of the action, and even since judgment in the lower court, plaintiffs should be permitted to file a supplemental petition, bringing the issue of damages up to the time of the trial, or to institute a new and separate action therefor.

For the respondents, there was a brief and the cause was argued orally by George F. Dobler and H. S. Harnsberger, both of Lander.

This is an action of ejectment against Marshall Graham as receiver of property known as the Carissa Mine. Plaintiffs base their alleged title upon a judicial sale held October 15, 1932 which sale, defendant contends, was void for reasons set forth in the pleadings and in the proof. We feel that the brief of appellants contains numerous erroneous statements as to the facts. The record discloses the nature of said errors. There were numerous claims against the property and the receivership was created to permit the marshalling of assets in proper order for the satisfaction of debts. State v. Tidball, 252 P. 499. The property was in custodia legis. The sale was without leave of the court and was void. Wiswall v. Sampson, 14 Howard U.S. 52; Hitz v. Jenks, 185 U.S. 155; Gardner v. Caldwell, 40 P. 590 and cases cited; High on Receivers, 3d Ed. 422; Clark on Receivers, Vol. 1, 335; 23 R. C. L. Secs. 2, 3, 70-74; 53 C. J. Sec. 126, 134, 138; Tardy's Smith on Receivers, Vol. 1, 2012. The possession of the receiver is the possession of the court. Dugger v. Collins, 69 Ala. 324. The option referred to in paragraph 13 was fraudulent and rendered the sale of October 15, 1923 void: (a) As against public policy; (b) Because it tended to chill and stifle bidding and prevent competitive bidding. Hamilton v. Hamilton, 46 Am. De. 58; Gable v. O'Connor, 61 N.W. 131; Cox v. Izard, 19 L.Ed. 275; Spokane Soc. v. Company, 294 P. 1038; Investment Company v. Electric Company, 206 F. 488; Company v. Marple, 38 L.R.A. (L.R.A.) 725; Davidson v. Lanier, 71 U.S. 377; 16 R. C. L. 68; 35 C. J. 39; Farr v. Sims, 24 Am. Dec. 396. (c) That said agreement did stifle bidding. Miller v. Winslow, (Wash.) 126 P. 909; Wood v. Drury, (Kan.) 45 P. 764. Defendant is not estopped from complaining about said void agreement. Sullivan v. Sullivan, (Okla.) 194 P. 223; Metropolitan Trust Company v. Lumber Company, 162 F. 170. The sale did not deprive the receiver of possession or right to possession of the Carissa property. R. R. Company v. Adelbert College, 52 L.Ed. 379. A court of equity may set aside a receiver's sale. 21 R. C. L. 110; In re First Trust Bank of Billings, 122 P. 561; Koontz v. Bank, 21 L.Ed. 465. The confirmation of the sale did not cure all defects. 9 R. C. L. 838; Frazier v. Jeakins, (Kan.) 68 P. 24; 57 L.R.A. 575; 24 Cyc. 36. There was no damage to plaintiff. 1 Clark on Receivers 510, 512; 23 R. C. L. 85-89. The receiver is not a privy of Federal Gold Mining Company, Midwest Mines Corporation or any lien creditor. 25 R. C. L. 7. Knowledge of the judge presiding is not imputed to judges who may preside later in the same district. American Loan & Trust Company v. R. Company, 86 F. 390; Gross v. Trust Company, 289 U.S. 542. Isaac v. Hobbs Tie and T. Company, 282 U.S. 734; Buck v....