Utah Association of Credit Men v. Budge

• Decision Date: 16 June 1909
• Citation: 16 Idaho 751,102 P. 390
• Parties: UTAH ASSOCIATION OF CREDIT MEN, a Corporation, Plaintiff, v. ALFRED BUDGE, Judge, Defendant
• Court: Idaho Supreme Court

102 P. 390

16 Idaho 751

UTAH ASSOCIATION OF CREDIT MEN, a Corporation, Plaintiff, v. ALFRED BUDGE, Judge, Defendant

Supreme Court of Idaho

June 16, 1909

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.

Writ quashed, and action dismissed, with costs in favor of the defendant.

Gray &amp 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.)

AILSHIE, J. Sullivan, C. J., and Stewart, J., concur.

OPINION

AILSHIE, J.

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 here that since the property mentioned and described in the cross-complaint filed by the First National Bank is not the property involved in the original action and is no part thereof, it was therefore beyond the jurisdiction of the trial court to entertain a cross-complaint involving such property and to appoint a receiver to take charge of such property. It is argued by counsel for plaintiff that under the provisions of sec. 4188, Rev. Codes, as construed by this court in Hunter v. Porter, 10 Idaho 72, 77 P. 434, a cross-complaint could not be filed against a plaintiff in intervention involving any property not included in and covered by the complaint in the original action, in which the intervention was allowed.

The defendant, on the other hand, contends that although the action of the court in permitting such a cross-complaint and appointing a receiver to take charge of property not mentioned or involved in the original complaint may have been error, still it was an error within the jurisdiction of the trial court, and was committed by the court as such while exercising a lawful and rightfully acquired jurisdiction over both the person and the subject matter.

For the consideration of the present question, we may admit that the action of the trial court was erroneous, and upon that assumption consider the further question as to whether the action was in excess of and beyond the jurisdiction of the district court. In the first place, we should bear in mind that under the provisions of sec. 4962, Rev. Codes, "A writ of review may be granted by any court except a probate or justice's court, when an inferior tribunal, board or officer exercising judicial functions has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy." Under the provisions of the foregoing statute it is clear, and has been so held by this court, that if the order made by the trial court was within its jurisdiction, however erroneous it may have been, it cannot be reached by writ of review; or if an appeal lies from that order to this court, then the writ of review should not issue. (People v. Lindsay, 1 Idaho 394; Rogers v. Hays, 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; Canadian Bank of Commerce v. Wood, 13 Idaho 794, 93 P. 257.)

The first thing, therefore, that we will consider in this case is whether or not the court was acting within its jurisdiction and if it was so acting this remedy is not open to the plaintiff. If the court had jurisdiction of the person and the subject matter, then it is clear that whatever mistake has been made has been only an error committed on the part of the trial court...