Utah Assoc. Of Credit Men v. Budge
| Decision Date | 16 June 1909 |
| Citation | 102 P. 691,16 Idaho 751 |
| Parties | Utah Association Of Credit Men, A Corporation, Plaintiff, v. Alfred Budge, Judge, Defendant. |
| Court | Idaho Supreme Court |
JURISDICTION TO APPOINT RECEIVER-WRIT OF REVIEW-APPEALABLE ORDERS AND DECISIONS.
1. An order made by a district court within the jurisdiction of such court and after having acquired jurisdiction of the person and subject matter, however erroneous it may have been, is not an excess of jurisdiction that can be corrected by writ of review.
2. Under the provisions of sec. 4329, Rev. Codes, the district court has jurisdiction and authority to appoint a receiver in an action by a creditor to subject any property or fund to his claim or in an action by any party whose right to or interest in a specific property or fund, or the proceeds thereof, is provable, and where it is shown that the property or fund is in danger of being lost, dissipated, removed, or materially injured.
3. The authority and jurisdiction to appoint a receiver conferred by sec. 4329, Rev. Codes, confers authority on the district court to appoint a receiver to receive and take charge of notes, accounts, certificates of the capital stock of corporations and choses in action, and other personal property, where the necessity and occasion for such appointment is shown.
4. Under the facts of this case as shown by the petition, the court had jurisdiction to make the order complained of, and whatever error may have been committed by the court in making such order is not such an error as can be corrected on writ of review.
5. Under the provisions of sec. 9, art. 5, of the state constitution, the supreme court has jurisdiction to review upon appeal any decision of the district court or the judges thereof, but this provision of the constitution does not make every order or decision that a district court or judge thereof may make directly appealable. By this it is intended that when an appeal is taken from an appealable order or judgment to the supreme court, that the latter court shall have the jurisdiction and authority to review any and all orders and decisions made by the trial court, to which the party has duly excepted and preserved his exception and objection in the manner and form provided by law; and it is this jurisdiction and authority that the legislature has no power to abridge or interfere with. The legislature does however, have the power and authority, as conferred by sec 13, art. 5, of the constitution, to provide a proper system of appeals, and to specify such orders and decisions as shall be directly appealable to the supreme court.
(Syllabus by the court.)
Original action praying for a writ of review to review the action of the Hon. Alfred Budge, Judge of the fifth judicial district in appointing a receiver. Writ quashed and action dismissed. Costs awarded to the defendant.
Gray & Boyd, for Plaintiff.
The question of jurisdiction is determined from a consideration of both the pleadings and the evidence. (Sweeny v. Mayhew, 6 Idaho 455, 56 P. 85; Kelly v. Steele, 9 Idaho 141, 72 P. 887.) If the pleading (the cross-complaint here of the bank) was not sufficient to authorize the appointment of a receiver, and if the evidence at the hearing did not contain sufficient additional facts to authorize it, the court was without jurisdiction. (Kelly v. Steele, supra.)
Under no possible construction of sec. 4188, Rev. Codes, can this alleged cross-complaint, or the relief prayed, or the relief granted by the court by appointing a receiver, be found to "affect the property to which the action relates." It is in no sense a counterclaim. It is a cross-complaint under sec. 4188 or nothing. This court has held that, under that section, a cross-complaint is not as broad as a counterclaim. (Hunter v. Porter, 10 Idaho 70, at pp. 83-85, 77 P. 434.) In that case the court clearly recognizes our position that a cross-complaint may not be a proper cross-complaint, though it might be good for an independent action. If it is not a proper one under the statute, the court acquires no jurisdiction under it.
We have no appeal from the order under the statute. This court has held in Sweeny v. Mayhew, Judge, 6 Idaho 455, 56 P. 85, that certiorari is the proper remedy to determine whether the lower court had jurisdiction in the case to appoint a receiver. And we have no plain, speedy or adequate remedy at law. Not being one of the orders from which an appeal may be taken, or which can be reached on appeal from final judgment, we have no plain, speedy or adequate remedy other than by this writ. Even if the right of appeal exist, as it does not here, yet if such an appeal do not afford adequate relief, the writ may yet lie. (State v. Rose, 4 N.D. 319, 58 N.W. 519, 26 L.R.A. 593; Ducheneau v. House, 4 Utah 367, 10 P. 427.) Standrod & Terrell, for Defendant.
There can be no question about the power of the district court to appoint a receiver. (Sec. 4229, Rev. Codes.) This being the case, whatever error it might have committed in its order appointing a receiver would be only an error and not an excess of its jurisdiction. (People v. Lindsay, 1 Idaho 394.) The court having jurisdiction of both the subject matter and person of the defendants has the right and authority to hear and determine all questions that occur in the case, and are essential to a decision of the merits of the issues. (Taylor v. Hulett, 15 Idaho 265, 97 P. 37, 19 L.R.A., N. S., 535; Richardson v. Ruddy, 15 Idaho 488, 98 P. 842.)
A writ of review does not lie where there is a remedy by appeal. (People v. Lindsay, 1 Idaho 394; Rogers v. Hayes, 3 Idaho 597, 32 P. 259; Chemung Min. Co. v. Hanley, 11 Idaho 302, 81 P. 619; Dahlstrom v. Portland Min. Co., 12 Idaho 87, 85 P. 916; Bank of Commerce v. Wood, 13 Idaho 794, 93 P. 257.)
-This action was commenced in this court by the plaintiff, Utah Association of Credit Men, praying for the issuance of a writ of review to the Hon. Alfred Budge, judge of the fifth judicial district. The writ was issued as prayed for and return has been made, and the case has been argued and submitted on demurrer to the petition and motion to quash the writ.
It appears both from the petition and the return to the writ that in September, 1908, the First National Bank of Pocatello commenced an action in the district court, in and for Bannock county, against Nathan Barlow et al. on a promissory note executed by the defendants Barlow et al., and in that action sought to foreclose a pledge of certain notes, certificates of stock and choses in action which had been previously pledged to the bank to secure the payment of the note.
Subsequent to the commencement of the action the plaintiff herein, the Utah Association of Credit Men, obtained leave of the court to file a complaint in intervention, and accordingly filed their complaint, alleging that certain of the notes on which the First National Bank sought to foreclose its lien were the personal property of the plaintiff in intervention, and prayed that those notes be declared to be its property free and exempt from the alleged pledge lien. The bank thereafter answered the complaint in intervention denying the material allegations thereof, and at the same time filed a cross-complaint against the Utah Association of Credit Men. By its cross-complaint it alleged that the Industrial Savings Association was indebted to the First National Bank, and that the Utah Association of Credit Men was in possession of a large number of notes and choses in action, and other personal and real property as the trustee and assignee of the owner, the Industrial Savings Association, and that it was mismanaging and wasting the property and incurring unnecessary expense in connection therewith, and that unless a receiver was appointed to take charge of the property in its hands, it would be squandered and dissipated to the injury and damage of the creditors of the Industrial Savings Association of which the First National Bank was principal creditor. It accordingly prayed that a receiver be appointed to take charge of this property, which application was granted by the court. Upon the entry of the order the Utah Association of Credit Men applied to this court for a writ of review.
It is contended by the plaintiff...
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