10 Colo. App. 66 | Colo. Ct. App. | 1897
delivered the opinion of the court.
We have searched the record in vain for material on which this appeal can he rightfully predicated, and for a basis on which to express an opinion respecting the difficult and somewhat novel questions which have been discussed by counsel. From the abstract we can only gather that in the
On these proceedings and this record, counsel have presented and argued two propositions. The first is as to the authority of the Arapahoe Paper Company to make an assignment, when proceedings were pending for the appointment of a receiver which resulted in his appointment; and second, as to the rights of the receiver respecting the possession of the property, and collaterally, as to the method pursued to raise this question. Manifestly, the inquiry is one of very much difficulty and of great importance. We are very frank to state that after the ease was argued, it was taken under consideration, and the legal propositions involved were carefully examined in the light of all the authorities cited by both counsel. When this investigation was completed, and found to be involved in so much obscurity the record was examined to discover the .exact form in which the questions were raised, and the peculiar circumstances under which the various proceedings were had to obtain therefrom such aid as we might in applying the legal principles on which the respective parties relied. This examination disclosed the insufficiency of the record and.has led us to adopt our present course. It is an universal rule well settled by the decisions in both of the appellate courts that no appeal can be successfully prosecuted except from a final judgment. A final judgment, as it has been defined by the courts, is an adjudication which shall completely settle, end, and determine the rights of the parties. We cannot discover in this record any such final judgment. The motion in terms only sought the dismissal of the assignment proceedings, and an order to compel the assignee to turn over the property of the Arapahoe Paper Company which had come into his possession and of which he had control at the time the motion was heard. Manifestly, so far as the latter branch of the motion is concerned, whatever order the court should make in the premises would not determine the rights of the receiver
The court does not acquire its jurisdiction originally by the filing of any papers in the clerk’s office, the issuance of any process, or the initiation of any matter analogous to either an action, a suit, or a proceeding. It has its origin in the execution of the deed, or transfer from the assignor to the assignee of all of the assignor’s property, and by the execution of the instrument, the title vests according to the statute in the assignee for the benefit of creditors. When
This discussion has proceeded to a considerable length, but no farther than is absolutely essential to illustrate our position and show the limits of the opinion. It may possibly contain suggestions to counsel respecting the proper method of proceedure, but this we are wholly unable to avoid. In conclusion we may possibly be permitted to suggest, in view of the further continuance of the litigation, and that the rights of the parties may be settled, that the practice which obtained in many decisions to which our attention has been called, suggests what to us seems the one which should he adopted in the further pursuit of this litigation. It is quite generally held the receiver may not be sued without leave of the court, and the statute of 1893, supra, enacts that the assignee may not be sued without leave of the court. If application be made to the district court on behalf of either for leave to bring suit against the other to settle this question of right and title, the court would undoubt
This being our conclusion in the premises we are unable to reach any other than that the appeal must be dismissed because it is not predicated on a final judgment which may be reviewed by this procedure.
Appeal dismissed.