228 N.W. 223 | N.D. | 1929
This appeal is from an order of the district court of LaMoure county appointing a receiver for certain crops and restraining the appellants from encumbering or disposing of the same. The appellants have complied with few if any of the requirements prescribed by the Rules of Practice of this court with respect to the taking of appeals, and for that reason the appeal properly should be dismissed. See Rule 36, 41 N.D. p. 702, 180 N.W. p. XI. We have, however, examined into the merits of the appeal and are of the opinion that, in any event, the order of which the appellants complain should be affirmed.
The order in question was entered on the application of the respondent and after hearing. There is no certificate of the district judge identifying the papers used by the parties on the hearing of the application and upon which the order is based. We gather, however, from the papers which were transmitted on the appeal in the main case with the same title as this (see ante, 176,
The appellants on this appeal contend, first: that when the appeal in the main action was perfected by the service of notice and undertaking on August 19, 1927, thereby the trial court was divested of all jurisdiction with respect to the real property in question, and with respect to the crops growing thereon, the subject of the application and order, and on that account the order must be reversed; that, in any event, the appellants having furnished an undertaking pursuant to the order of the court and the provisions of § 7828, Comp. Laws 1913, respecting waste and the value of the use and occupation of the premises from the time of the appeal, that the respondent had not made such a case as would warrant the issuance of the order and on that account also the same must be reversed. On the other hand, the respondent contends that the case comes within the provisions of § 7588, Comp. Laws 1913, and particularly the fourth and sixth subdivisions thereof, providing that a receiver may be appointed by the court in which the action is pending, or by a judge thereof in the cases therein enumerated; and that, in any event, the court as a court of equity has the inherent power to conserve the property within its jurisdiction which is involved in any case pending before it.
The order of which the appellants complain is a discretionary order. Given facts which show jurisdiction in the court and sufficient to invoke the exercise of discretion, this court will not interfere where in such case the trial court exercised such discretion, except in case of an abuse thereof.
The main case had been tried and disposed of by the trial court. The judgment entered by that court was in favor of the respondent quieting title in it and awarding the possession of the premises in question to it. The crop involved in the receivership proceeding, with respect to which the order from which this appeal was taken was entered, was crop about to mature on the premises. At the time the *903
application for the order was made no appeal had been perfected. At that time the court unquestionably had jurisdiction and authority to appoint a receiver to conserve it if it were necessary that this be done. When the appeal was perfected the trial court was thereby divested of the power to hear the parties further upon any question involved in the determination of the main action, but it retained jurisdiction to protect and preserve the property which was the subject of the litigation. See § 7588, Comp. Laws 1913; Mitchell v. Roland, 95 Iowa, 314, 63 N.W. 606; Brinkman v. Ritzinger,
The showing of the respondent was that the appellants were insolvent; that the appellants had already appropriated the proceeds of the 1926 crop; that the 1927 crop was mature and about to be severed and that the appellants would appropriate that also and the same would be lost to the respondent even though the appeal were ultimately decided in its favor. The undertaking provided on the appeal which was subsequently perfected, insured the respondent against any waste that might be committed and that the appellants would account for the rents and profits from the time of the appeal until the delivery of possession pursuant to the judgment, if the same were affirmed. It seems to us that the undertaking thus given did not insure to the respondent the benefit of the mature crop which was about to be severed. The harvesting of the crop would not be an act of waste so as to come within the condition of the undertaking in that respect. Robinson v. Russell,
BURKE, Ch. J., and BURR, CHRISTIANSON, and BIRDZELL, JJ., concur.