Collins v. Case

25 Wis. 651 | Wis. | 1870

Cole, J.

We have very grave doubts about the appealability of this order. The counsel for the appellants assumes that it is appealable, without any question. The counsel on the other side makes the point on his brief, that the order was one resting in the discretion of the court below, and that it cannot be brought to this court by appeal. But he does, not argue the point at all. The question is not free from difficulty, and an argument upon it might have cleared up doubts which we shall entertain.

If the order is appealable at all, it must be because it comes within the class mentioned in the second subdi-division of sec. 10, ch. 264, Laws of 1860, as “a final order affecting a substantial right made in special proceedings, or upon a summary application in an action after judgment.” And it is, doubtless, placing a very liberal construction upon this language to hold this “a final order affecting a substantial right.” In a certain sense the order is “final;” that is, it directs the receiver to invest the moneys in his hands in bonds of the United States; and, when the investment has once been made, there is an end of the matter until a change is made 'or the bonds sold. And it may, and certainly does, “affect a substantial right,” to be deprived of the use and control of money to .which a party is entitled, and to have it retained under the control of the court, and in the hands of a receiver. So long as funds remain in the hancLs of a receiver, they are more or less exposed to jeopardy. And, as a general rule, men prefer to control and manage their own property, and this right, should be secured to them as far as possible. It is considerations like these which have induced us to hold the order in this case appealable.

Upon the merits of the order, we think it much better for all concerned that the funds be distributed among those entitled to them. This seems to have been the idea when the judgment was rendered, and there is no difficulty in carrying it ont at this time. If there are any of the subscribers who have not paid, the court can readily so frame the order as to deprive them of dividends out of the funds until their rights are settled. And the receiver might be permitted to retain a sufficient amount in his hands to meet any costs or expense he would be likely to incur in the execution of his duties. Further than this, why may he not make a ratable distribution of the funds in his hands ? It seems to us that this is the proper disposition to make of the funds, rather than retain them under the control of the receiver.

By the Qourt. — The order is reversed, and the cause remanded for further proceedings in accordance with the above opinion.