61 N.W. 1031 | N.D. | 1894
There are three cases, eo nomine, but they are so interwoven and interdependent that it will be more satisfactory to dispose of them all in one opinion. They all arise out of efforts made by the defendant and appellant to discharge a receiver appointed in the original action brought by the plaintiff against the defendant.
Upon the first case, which is an appeal from the order appointing the receiver, we find, on reference to the record, that there is no evidence of any service of notice of appeal either upon the plaintiff in the action, or upon the clerk of the court from which the appeal is taken. We have repeatedly held that the service of this notice upon the clerk was jurisdictional, and that even the appearance of the respondent in the action in this court would not give us jurisdiction, where there had been no service of notice on the clerk. And see Gold Street v. Newton, 2 Dak. 39, 3 N. W. 311. We are therefore left without jurisdiction to determine this appeal. We are satisfied, however, that the result would not have been different, even had the notice of the appeal being served, because the receiver was app'ointed on the application of the plaintiff, contained in her original complaint, supplemented by an affidavit. The abstract which the appellant has brought into this court discloses the complaint, the affidavit, and the order, and we are asked to set aside the order because the complaint and.affidavit
Some time after the appointment of the receiver in the original case, the parties to the action went before the Honorable W. S. Lauder, Judge of the Fourth Judicial District, in the absence of the Judge of the Third Judicial District, in which district the action was brought, and, upon the motion of the defendant, consented to by the plaintiff, asked to have the receiver discharged. The judge to whom this application was made was not the judge who made the original order appointing the receiver, but upon the hearing — the receiver not appearing, and not having been notified — the judge refused to grant an order discharging the receiver. From the order thus made, the second appeal was taken. We are very clear that we cannot disturb that order, first, because orders of that character are so peculiarly in the discretion of the trial court that it is only in exceptional cases, and where abuse of-discretion is unquestionably shown, that this court would interfere with an order made by the trial judge. In this case, so far from finding any abuse of discretion, it seems too clear for argument that the order was in all respects right. The application for the discharge did not ask that the receiver be notified, and requested to pass his accounts, or that any provision be made in any way for payment for his services, or for disbursements that he may have made. A party cannot thus apply to a court, have a receiver appointed and enter upon the discharge of his duties, execute his bond, take charge of property, incur large disburse-
The third appeal arises in the following manner: Subsequent to the application above noticed the parties went before Judge Lauder, and, by stipulation, dismissed the original action, allowing judgment to be rendered against the plaintiff for costs. In this application it was in no manner disclosed to the court that any receiver existed in the case. The court made an order dismissing the case, and directing judgment against the plaintiff, as per the stipulation. Very soon thereafter, and as soon as knowledge of these facts came to the receiver, that officer, by his attorneys, applied to Judge Lauder for an order setting aside the order of dismissal; setting forth in the application the existence of a receivership, and that such order of dismissal had been made without notice to or knowledge of the receiver, and in fraud of his rights. Upon such application, Judge Lauder set aside the order of dismissal, and from this latter order the third appeal is taken. This order is not appealable, under Laws 1893, Ch. 83.
For the reasons stated under the second appeal, and on the authorities there cited, it becomes apparent that the order from which the appeal is taken was in all respects proper.
It must therefore be affirmed.