United States v. Church of Jesus Christ of Latter-Day Saints

• Decision Date: 18 January 1888
• Citation: 5 Utah 394,16 P. 723
• Court: Utah Supreme Court
• Parties: UNITED STATES v. CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, AND OTHERS

16 P. 723

5 Utah 394

UNITED STATES v. CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, AND OTHERS

Supreme Court of Utah

January 18, 1888

APPLICATION for an appeal from an order of the supreme court of Utah appointing a receiver to take charge of the assets of the Church of Jesus Christ of Latter-Day Saints.

Motion denied.

Mr. Le Grande Young, and Messrs. Sheeks & Rawlins, for the application.

Mr George S. Peters, contra.

HENDERSON J. ZANE, C. J., and BOREMAN, J., concurred.

OPINION

HENDERSON, J.:

The defendant corporation makes application for an appeal to the supreme court of the United States, under section 692, Rev. St., U.S. from the order heretofore made herein appointing a receiver. The complaint prayed that a receiver be appointed by the court to take charge of the property during the pendency of the suit, and a motion was made for the appointment of a receiver "as prayed in the complaint." The motion was heard upon an agreed statement of facts; it being a part of the stipulation that the facts therein stipulated should be used upon the hearing of the motion, and for no other purpose whatever. At the time the motion was heard, the defendants had filed a general demurrer to the complaint for want of equity. The motion was heard and granted by this court November 5th, last; the opinion of the court being read by the chief justice, and reported, ante p. 361. This opinion recites fully the complaint, and the law under which it is filed. Pursuant to that opinion, an order was entered appointing a receiver, as prayed in the complaint. Since that time the demurrer has been submitted, and an order entered overruling it; and the defendants have answered, controverting the averments of the complaint, and averring the unconstitutionality of the law under which it is brought. A commissioner has been appointed to take testimony. This is the situation of the case when this application is made. The statute before referred to, under which this application is made, provides that "an appeal shall be allowed to the supreme court from all final decrees." It is contended by counsel for the defendant corporation that the order appointing a receiver is a final decree, within the meaning of this statute, while counsel for the government contend that the order is not final, but is interlocutory, and therefore not appealable; and this is the only question before us.

The right to appeal is purely statutory, and therefore depends entirely upon the construction of the particular statute upon which an appeal is claimed. We have been referred by counsel for defendant to a large number of cases from the various states construing various statutes thereof, from which the general rule may be deduced that under statutes allowing an appeal from final orders and decrees, in determining whether an order or decree is final and appealable, the court will look at the substance and effect, rather than to the form, or the time when it is made. And in applying this general rule to orders appointing receivers, if it is found that the order finally adjudicates and disposes of the subject-matter of the litigation so far as it can be done in the action, or any part of it, then it is appealable. But if the complaint brings into court a subject-matter ancillary to that in which the court is or may be charged with the care, distribution, disposition, or application of a fund or property, and the court makes a preliminary order appointing a receiver to hold the property for it, awaiting final determination of the principal question, it is not final. And the rule has been applied with varying results according to the facts under consideration. Thus, in Michigan, where the rule as above stated has been repeatedly declared: Kingsbury v. Kingsbury, 20 Mich. 212; Duncan v. Campau, 15 Mich. 415; Wing v. Warner, 2 Doug. (Mich.), 288. In applying this rule in Lewis v. Campau, 14 Mich. 458, it was held by a divided court that the order appointing a receiver was final and appealable, under the peculiar facts of that case. It appeared that the complainant had made application to the probate court to have an administrator removed for misconduct in the management of his trust; that the administrator was delaying the hearing; and pending these proceedings the complainant filed his bill, praying, as principal relief, that a receiver might be appointed to take charge of the trust estate during the pendency of the proceedings. Upon filing the bill, the court appointed a receiver. The majority of the court held that it was final, within the rule, because it granted all that the complainant asked as principal relief, and was a final disposition, so far as the court could make it under the bill. And in Barry v. Briggs, 22 Mich. 201, the court held the order appointing a receiver appealable, because it took from a sole surviving partner the entire assets of the copartnership, and authorized the receiver to proceed to "sell all the property, and convert it into cash, and directing and commanding the defendant to transfer the legal title to the receiver," thereby divesting the surviving partner of it forever. These cases were much relied upon by counsel for defendant in this argument.

In the supreme court of the United States the statute under consideration has been repeatedly construed, and substantially the same general rule has been declared Railway Co. v. Express Co., 108 U.S. 24, 2 S.Ct. 6, 27 L.Ed. 638; Forgay v. Conrad, 6 HOW 201, 12 L.Ed. 404; Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157; Dainese v. Kendall, 119 U.S. 53, 30 L.Ed. 305, 7 S.Ct. 65. In the case last cited, Chief Justice Waite, in deciding the case, gives a general definition of a final decree, as follows: "A decree, to be final for the purposes of an appeal, must leave the case...