No. 26727. | La. | Nov 3, 1924
Lead Opinion
Appellees have filed a motion in this court to dismiss the appeals. The motion may be said to be based upon four distinct grounds, of which only one has been noticed in the brief filed in support of the motion. The ground noticed is disclosed by articles 2 and 3 of the motion, which read as follows:
*330"II. That the return day fixed by the order of appeal and prayed for in the petition of appeal filed by said interveners is not such a return day as is fixed and provided for by law for an appeal from an order appointing a receiver.
"III. That this appeal is made returnable to this court in less than 15 days from the date of the order of appeal."
In other words, as appears from their brief the contention of plaintiffs and defendant is that the appeals in this case were taken under the first sentence of section 4 of Act 159 of 1898, which is a part of the law governing the appointment of receivers, when they should have been taken under Act 106 of 1908, which provides for the fixing of the return day for appeals generally, save, by construction, in certain instances specially provided for by other laws. The difference stressed by appellees between the two methods of appeal is that in the former the appeal, by law, is made returnable in 10 days, whereas in the latter the trial judge is directed to fix the return day in the order granting the appeal, which, unless otherwise agreed to by the parties, must not be less than 15 days nor more than 60 days from the date of the order. Hence the contention of appellees seems to be that the appeals should be dismissed, as they were granted on June 27, 1924, and made returnable, without the consent of the parties, on the 30th of the same month — only three days after the date of the order granting them.
The appeals, as contended for by plaintiffs and defendant, were granted and perfected under the first sentence of section 4 of the act cited. The entire section reads as follows:
"Any person or persons who by affidavit appear to be interested, on giving bond in a sum to be fixed by the court, may appeal in the face of the record from any order appointing, or refusing to appoint a receiver, granting, or refusing to grant an injunction as aforesaid; such an appeal when perfected shall have the effect of suspending the functions of such receiver, except to perform such administrative acts as may be necessary for the preservation of the property; provided that such appeal must be taken and perfected within ten days from the entry of the order appointing or refusing to appoint a receiver, or granting or refusing to grant an injunction. Such appeal shall be returnable in ten days from the date of such order, and shall be tried by preference in the appellate court. Any interested party may apply within *331 thirty days after the entry of the order of appointment of a receiver to vacate same on legal or just grounds, and may appeal from an adverse judgment, but such appeal shall not suspend the functions of said receiver in any way. The value of the property confided to the receiver shall determine the jurisdiction of the appellate court."
The contention of appellees is that the first sentence of the section quoted, as appears from the language used, does not include appeals taken by one of the parties to the suit, but has reference only to appeals taken by parties at interest, but who are strangers to the suit, and that the second sentence of the section, which fixes the return day, relates only to appeals of that class, that is, to those by third persons, as appears from the wording of the sentence and its place in the section; and, as to the third sentence in the section, the contention is, in so far as it relates to appeals, that it has reference only to those from orders vacating or refusing to vacate the appointment of receivers, and not to orders appointing or refusing to appoint them.
From these premises appellees argue that, as the appellants herein were parties to the suit in which the order was rendered, appointing a receiver, and as the only special regulations governing appeals in receivership matters are those found in the section of the act quoted supra, and as this section does not include appeals taken by parties to the suit from orders appointing or refusing to appoint a receiver, appellants should have taken their appeals as provided by Act 106 of 1908, and that, having failed to do so, the appeals should be dismissed.
There might be some force in the contention of appellees as to what law governs the taking of appeals in cases such as the present, were the question a new one, but we are not prepared to hold that, even were appellees' contention maintained, as to what law governs, the result would be the dismissal *332
of the appeal. However, the question, as we have said, is not a new one. It has been decided at least twice that appeals by parties to the suit for the appointment of receivers are governed by section 4 of Act 159 of 1898, the section under consideration, and not by the general law. Thus, in the Louisiana Driving
Racing Club Case,
"In State ex rel. Garig v. King, Judge,
104 La. 472" court="La." date_filed="1900-11-15" href="https://app.midpage.ai/document/state-ex-rel-garig-v-king-7163262?utm_source=webapp" opinion_id="7163262">104 La. 472 , 29 So. 18, this court declared that the General Assembly, in enacting Act No. 159, p. 312, of 1898, authorizing and regulating the practice of appointing receivers, was dealing with a particular subject, and evidently intended to regulate and cover the whole practice concerning that particular matter. That statement has never been withdrawn or modified. Appellants urge that the rule in the statute governing appeals does not refer to appeals taken by the party to the litigation, but to appeals of third parties. It would be strange if a statute intended to cover the whole practice on a particular matter should or could be construed so as not to apply to the parties involved in the litigation."
And in Kerlin v. Bryceland Lumber Co.,
"This general law [Act 106 of 1908] is without application to appeals from orders appointing receivers, which is governed by a special *333 statute, contained in section 4 of Act No. 159 of 1898, p. 312, wherein it is directed that `such appeals shall be returnable in 10 days from the date of such order.' * * *"
Therefore, in view of the authorities cited, and in view of the fact that those authorities seem to be supported by the legislative intent, as gathered from the Act of 1898, our conclusion is that the Act of 1898 governs appeals in such cases as the present, and hence that the appeals taken herein should not be dismissed on the ground urged.
Let us assume, however, that the appeals in this case are not governed by section 4 of Act 159 of 1898, but should have been made returnable in accordance with the provisions of Act 106 of 1908, that is to say, on a day which should have been fixed by the judge within the period of not less than 15 nor more than 60 days from the date of the order granting them, still this would not justify their dismissal. The only objection, which then could be urged against the order granting the appeals, would be that the order makes them returnable, without the consent of the parties, before the lapse of the 15 days prescribed by the statute. The error, however, would be one imputable to the official granting the appeals, and not to the appellants; and hence, while the error would not be permitted to prejudice the rights of the appellees, yet it would not call for or justify the dismissal of the appeals. Wilder v. Jackson,
Appellees, as stated in the first part of this opinion, have included in their motion three other grounds for dismissal. While they have not noticed these grounds in their brief, still we may say that we have examined them, but find no merit in them.
For the reasons assigned, the motion to dismiss is denied. *334
Addendum
This is a suit to have a receiver appointed for the defendant corporation. It was filed on the heels of the suit of State ex rel. Dendinger et al. v. Kerr Gravel Co., decided this day;1 and was manifestly filed to anticipate the action of the court in that case. Both cases were tried and disposed of by the court below on the same day.
Plaintiffs have moved to dismiss the appeal taken by the intervenors on the ground that they have acquiesced in the judgment of the lower court (1) by moving to have the receiver's bond increased; and (2) by seeking the removal of the receiver for engaging in new business for account of said corporation, such as entering into new contracts, purchasing expensive new machinery, and issuing large amounts of receivers' certificates — all notwithstanding the suspensive appeal taken by intervenors, and in violation of the receivership act (No. 159 of 1898, p. 312), which provides that such an appeal "shall have the effect of suspending the functions of such receiver, except to perform such administrative acts as may be necessary for the preservation of the property."
The motion is wholly without merit. It is no more an acquiescence in the appointment of a receiver to ask that his bond be increased than it would be an acquiescence in an injunction or attachment to ask that the bond given to secure such writ be increased because insufficient. Nor yet is it an acquiescence in the appointment of a receiver to ask for his removal on the ground that, being receiver in fact by reason of his appointment, he is acting illegally under his said appointment pending the appeal taken. No more so than it would be an acquiescence in a seizure to complain additionally that the sheriff was proceeding to execute said seizure in an unlawful manner. *337
"If the minority stockholder or stockholders shall unsuccessfully prosecute their cause for the appointment of a receiver, he or they shall not only be condemned to pay the cost of the proceedings, but shall be further condemned to pay reasonable counsel fees, and other reasonable expenses to the corporation or the stockholders on whose action, joint or several, the complaining stockholder bases his claim for relief. * * *"
And a petitioner for the appointment of a receiver, whose demand, though successful below, is rejected on appeal, is unsuccessful within the meaning of said act. Uncle Sam Planting
Mfg. Co. v. Reynaud (our No. 26837)
We fix the sum of $300 as a reasonable attorney's fee in this case, and assess it against the unsuccessful stockholder.