Tibbals v. Graham

• Decision Date: 09 January 1940
• Docket Number: 2129
• Parties: TIBBALS ET AL. v. GRAHAM ET AL
• Court: Wyoming Supreme Court

97 P.2d 673

55 Wyo. 169

TIBBALS ET AL. v. GRAHAM ET AL

No. 2129

Supreme Court of Wyoming

January 9, 1940

Rehearing Denied March 5, 1940.

APPEAL from the District Court, Fremont County; C. D. MURANE, Judge.

Suit by Barney N. Tibbals and another against Marshal Graham, as received of the Midwest Mines Corporation, and as receiver appointed in case 4561 of the District Court of Fremont County, Wyo., and as asserted receiver for the Federal Gold Mining Company, and others to recover possession of certain mining claims and for other relief. From a judgment dismissing their action and an order denying their motion to vacate the order of dismissal, plaintiffs appeal.

Affirmed.

For the appellants, the cause was submitted on the brief of John J Spriggs of Lander.

No consent of the appointing court is necessary to sue a receiver when he is a trespasser. 23 R. C. L. 125; Hill v. Parker, 111 Mass. 508; Walling v. Miller, 108 N.Y. 173, 15 N.E. 65. Constitutional rights are not dependent upon a court or judge. Re Hollen Parker, 131 U.S 221. Courts are always open for the correction of wrongs to persons or property. Article I, Sec. 8, Wyo. Const. The dismissal of the action violates Article I, Sec. 6, Wyo. Const. Plaintiffs were not parties to case No. 4561 and are not bound thereby. Bolln Company v. Irr. Company, 19 Wyo. 542. Liens are limited to leaseholds. National Company v. Stanton, 35 Wyo. 224. Tibbals cannot be denied equal protection of the law. Poston v. Delfelder, 39 Wyo. 163. Courts are mere instruments of the law. Osborn v. Bank, 9 Wheat. 738. The court was without jurisdiction to appoint a receiver. McCutheson v. Superior Court, 24 P.2d 913. His acts are therefore void. Taylor v. Taylor, 45 P.2d 603; Dillard v. Franklin, 57 P.2d 631. The property involved is being confiscated. Central Ry. v. Marsh, 59 F.2d 61. Title of property of a deceased person cannot be deraigned, except through the probate code. Tolan v. Earl, 61 P. 914. Graham was appointed receiver of the lessee's interest. He had no lawful authority to sell the property. Bank v. Enis, 44 Wyo. 514; Waechter v. Wilde (Wyo.) 38 P.2d 323. Court permission is unnecessary to sue for a rejected claim. Sec. 89-3610, R. S. Courts are bound by the Constitution. The petition alleges facts showing that defendant receiver is a trespasser. An act in conflict with a statute is void. State v. District Court, 33 Wyo. 281. Graham's refusal to adopt the lease was approved by the court, which removes the lease from the receiver. Graham is not a receiver for the Federal Gold Mining Company. Courts cannot create facts by judicial assertion. Parties are entitled to notice of court proceedings affecting their property. Barret v. Oakley, 40 Wyo. 449; Clinton v. Elder, 40 Wyo. 350. The trial court was disqualified by an affidavit of prejudice. Sec. 89-1101, R. S. 1931; Huhn v. Quinn, 35 Wyo. 51; Washakie Company v. Meigh, 33 P.2d 925; State v. Fullerton, 183 P. 979. Graham, the receiver, decided his own claims and denied the plaintiffs' claims, which was lawful. Cooley Constitutional Limitations 592. A judge is prohibited from trying a case in which he is prejudiced. State v. Martin, 256 P. 690. The probate court is not a court of equity. Parr v. Reyman, 12 P.2d 440. A court cannot appoint a receiver for an administrator, Dillard v. Franklin, 57 P.2d 631, nor appoint a receiver to distribute the estate of a dead man. Tolan v. Earl, 61 P. 914. No attempt was made to appoint Graham receiver for any one other than the Midwest Company, the lessee. Courts are not exempt from civil liability for their acts. Moon v. Shaw, 15 R. C. L. 543. Graham was merely a receiver pending litigation and did not acquire title. 23 R. C. L. 53; Hastin Receiver v. Lincoln Trust, 197 P. 627; Bank v. Cook, 12 Wyo. 492. The receiver could have no rights superior to the Midwest. Nicholson v. Western Loan, 60 F.2d 577. The receiver had no defense whatsoever. First National Bank v. Cook, 12 Wyo. 492. The trial court proceeded contrary to established law. A lien is not an interest in property. 18 R. C. L., Sec. 104, p. 962. Liens are created by statute. Acheson v. Albuquerque, 29 P.2d 716. An action to foreclose a lien must be brought in the statutory time. Secs. 66-518, 617; Securities Company v. Daze, 17 P.2d 1049. The statutory method for perfecting liens is exclusive. The lien should be confined to the leasehold. Supply Company v. Weaver, 35 Wyo. 224; 40 C. J. 147, 148. The order confirming the sale was a final judgment. 16 R. C. L. 83. The title of Tibbals adjudicated in case No. 4182 was in rem. Goodman v. Cretcher, 294 P. 868; Matthews v. Nefsy, 13 Wyo. 458; Lessees of Gringon, 43 U.S. 335, 11 L.Ed. 290; Forest v. Intermountain Bldg. Loan, 65 P.2d 383 and cases cited. The property was in the custody of the law before a receiver was appointed and before the Midwest lessees acquired the lease. The Midwest Company was bound by all prior litigation. Klien Company v. Thompson, 63 P.2d 453; Howard v. Fischer, 283 P. 1042; Galeener v. Reynolds, 69 P.2d 49. We believe that the Supreme Court under its supervisory power, should now exercise such power in this case, and issue proper orders to prevent the confiscation of the property of plaintiffs, without due process of law, and to cause justice, as formerly adjudged by this court on appeal in case No. 4182, to be done. The trial court erred in dismissing the case as set forth in the first specification of error, and refusing to vacate said order as set forth in the second specification of error.

For the defendants and respondents, the cause was submitted on the brief and oral argument of George F. Dobler and H. S. Harnsberger of Lander.

Plaintiffs' action was in the nature of ejectment against Marshal Graham, Receiver. Plaintiff contends that the court committed error in its judgment of February 15, 1939, dismissing plaintiffs' action and taxing costs against the plaintiffs. The purpose of plaintiffs' action being to interfere with the possession of the receiver, it could not be maintained with the consent of the receiver. 2 Tardy's Smith on Receivers, 2010, 2012, 2019 and 2027; 1 Clark on Receivers 753. The authorities are uniform in supporting the above rule, unless such suits be authorized by statute. Wiswall v. Sampson, 55 U.S. 52; Barton v. Barbour, 140 U.S. 126; Buchanan v. Hicks, 34 L. R. A. (N. S.) 1203; Commonwealth Bonding & Casualty Company (Tex.) 192 S.W. 611. The granting of leave to sue on behalf or against a receiver is within the discretion of the court. 2 Tardy's Smith on Receivers 754-2038. The additional point urged by appellant in error in denying plaintiffs' motion for an order vacating the prior order and judgment of February 15, 1939, dismissing plaintiffs' action. This motion sought leave to amend their petition as to matters occurring subsequent to the commencement of the action, which, of course, should be brought into the record only by supplemental pleading. Phillips Code Pleading 299. The order made by Judge Tidball on February 27, 1939, granting permission to continue the action was conditioned upon a finding, by any other judge who might preside in the case, that plaintiffs were entitled to continue the action. Their petition could not be amended by alleging matters occurring subsequent to the commencement of the action. 4 C. J. 799; Hornfager v. Hornfager, 6 How. Practice (N. Y.) 13. The allowance or refusal of amendments is discretionary. Postlethwaite v. Minor (Cal.) 142 P. 55; Allen v. Land Company (Cal.) 143 P. 253; Insurance Company v. Crane (Okla.) 128 P. 260. There is no allegation in the petition that plaintiffs' claims were rejected by the receiver. Receivers are not to be subjected to useless or unnecessary litigation. Neiderjohn v. Thompson, 38 Wyo. 28. Appellants seek to make a part of the record, files in several cases which are referred to only by title or number and not set out in the pleadings. This cannot be done. Sidlo, Simmons Co. v. Phillips, 48 Wyo. 390. For the purpose of showing that this action is brought for the purpose of delay, we direct the court's attention to the case of Tibbals et al. v. Graham et al., 50 Wyo. 277. Defendant, as an officer of the court, should not be burdened with this useless and costly litigation. For the above reasons, respondent submits that both orders appealed from should be affirmed.

OPINION

PER CURIAM.

These proceedings by direct appeal seek the review of a judgment of the district court of Fremont County, dismissing appellants' action, and also an order made by said court declining to set aside said judgment. The parties will be referred to hereinafter as aligned in that court or by their respective names. The record submitted discloses the following facts:

The plaintiffs, Barney N. Tibbals and John J. Spriggs, brought suit in the district court aforesaid on December 15, 1938, to recover immediate possession of certain mining claims described in their petition, these properties being alleged to be in the possession of the defendant, Marshal Graham, as receiver of the Midwest Mines Corporation. Recovery of alleged damages is also sought in the action against the defendants, who are designated in plaintiffs' petition as "Marshal Graham, as Receiver of the Midwest Mines Corporation, and as receiver appointed in case 4561 of the District Court of Fremont County, Wyoming, and as asserted receiver for Federal Gold Mining Company, a corporation, and Morris K. Wilson, George C. Wilce, Gladys Spry Augur, as executors of the estate of John C. Spry, deceased, and Marshal Graham. " Plaintiffs further ask that an accounting be had between them and said receiver; that plaintiffs' title to said properties be quieted; that defendants be enjoined from asserting any further right title or interest...