Patterson v. Ward, 71 N.W. 543

Patterson v. Ward

71 N.W. 543 | N.D. | 1897

Wallin, J.

In April, 1894, H. D. Hurley, by an order of the trial court made herein; was appointed as receiver of certain lands involved in this litigation, including a certain farm, and by the same order the receiver was directed to carry on and crop said farm for said year of 1894. Pursuant to an order so to do, the receiver presented his account as such receiver in November of that year. The account embraced all transactions by the receiver, as such, from the date of his appointment to the date of presenting said account. The receiver did not ask for his discharge, and in fact has never been discharged, but, on the contrary, has by a subsequent order been continued in his trust. After hearing the receiver and the parties upon the matter of said account, the District Court allowed a part of said account, and disallowed a part thereof. From said determination of the District Court the plaintiff has appealed to this court.

In this court the receiver moves to dismiss the appeal, and claims that the law does not allow an appeal in such a case. If we regarded the action of the District Court in passing upon the *360receiver’s account as an interlocutory order, and nothing more, we should be inclined to grant the motion to dismiss. Interlocutory ordersoare never appealable, unless made so expressly, or by necessary implication, by the terms of some statute enacted for the purpose. 2 Enc. PI. & Prac. p. r6.. Certainly the right of appeal from an adjudication passing upon á receiver’s account is'not conferred in terms by § 5626, Rev. Codes, nor is such, right given by implication in that section, unless it is true, as claimed by appellant’s counsel, that it is conferred'by subsection 2 thereof, which reads: “A final order affecting a substantial right made in special proceedings, or upon a summary application after judgment.” The action has never been tried; hence it is obvious that the adjudication in the District Court from which an appeal is taken was not made after the entry of judgment. Nor do we think the determination of the District Court passing upon the account of the receiver was made in a special proceeding. However, we need not discuss this somewhat delicate point at any length, as we are of the opinion that the motion must Le denied in any event. As we view the matter, if an appeal does not lie from the action of the District Court' as from an order made in á special, proceeding, the case would then'fall within a class of determinations which are final with respect to the subject matter involved, and hence may be reviewed in this court as final judgments of a special nature, made in an action for equitable relief. The account of the receiver, as has been noticed, embraced every transaction of' the .receiver in his trust relation during the entire period for' which he was originally appointed. The account included the farming operations for the season of 1894, and as to that it was full and in all respects final. See Elliot, App. Proc. §99; Dufour v. Lang, 54 Fed. Rep. 913; 2 Enc. Pl. & Prac. 70; Heffron v. Rice, (Ill. Sup.) 36 N. E. Rep. 562; Hinkley v. Railroad Co., 94 U. S. 467; Hovey v. McDonald, 109 U. S. 150, 3 Sup. Ct. 136; High, Rec. 819a; Beach, Rec. § 774.

71 N. W. Rep. 543.

The motion to dismiss the appeal is denied.

All concur.