124 P. 508 | Wyo. | 1912
The plaintiff in error, A. T. Riffle, brought this action in the district court of Sweetwater county as a stockholder in the Sioux City and Rock Springs Coal Mining Company, a corporation, against said company and other defendants alleged to be officers or persons pretending to be officers of the company; and alleging that said parties were unlawfully and wrongfully assuming to act as such officers and.were fraudulently and unlawfully conducting the affairs of the company and were fraudulently issuing the stock of the company without consideration and in general were so conducting the affairs of the company as to deprive the plaintiff and other stockholders of their interest in the company and render their stock therein of no value, and praying that the defendants might be enjoined from further managing the affairs of the company until it should be determined who were the lawful officers of the company, and for other and general relief, or that a receiver be appointed to take charge of the books and records and property of the company pending the action. It appears that the company is a corporation organized under the laws of this state, but having its principal office and place of business in Sioux City, Woodbury county, Iowa; and that prior to the commencement of this
The statute sec. 4595, Comp. Stat, 1910, provides: “The party objecting to the decision must except at the time the decision is made; and time may be given to reduce the exception to writing, but not beyond the first day of the next succeeding term.” It has been held that the time for presenting a bill of exceptions to the court or judge for allowance can not under the statute be extended beyond the first day of the succeeding term. (Smith D. Co. v. Casper D. Co., 5 Wyo. 510-14, 40 Pac. 979, 42 Pac. 213.) In the present case the order of the court allowed the plaintiff in error sixty daj's within which to present a bill. That carried the time several days beyond the first day of the next term, and while the bill was presented to the court on the fifty-ninth day after the date of the order, it was not presented until the fourth day of the next succeeding term. That was too late. The motion to strike the bill of exceptions must, therefore, be granted.
The bill of exceptions being stricken from the files eliminates from the record and from pur consideration all questions presented except the question of the jurisdiction of the district court to make the order of sale which it did make. The defendants in error who have appeared and filed briefs
The only question on the merits presented by the record properly before us goes to the jurisdiction of the court to-make the order. The receivership being for the sole purpose of preserving the property pending the action, the only purpose, in the absence of special circumstances, for which any of the property could be properly sold would be to pay the expenses of the receivership in caring for and protecting the property, and so much only should be sold as would be necessary for that purpose. In this case, as we have before stated, the receivers reported certain claimed indebtedness and applied for an order to sell certain specific property described in the application. Assuming that the parties were notified of the application as ordered by the court, it may well be that they had no objection to the sale of that particular property; but to order a sale of other and additional property, not included in the application, might be quite objectionable. Under the application the court, in the absence of the parties, was limited to making an order for the sale of the property described in the application; and beyond that it was without jurisdiction. The order directing the sale of the Forest lien scrip or the interest of the corporation in the five hundred and twenty acres of land which had been entered with such scrip was beyond the issue tendered by the application and void. To constitute jurisdiction three things-are essential: “First, the court must have cognizance of the class of cases to which the one to be adjudged belongs.. Second, the proper parties must be present. And, third, the point decided must be, in substance and effect, within the issue. * * * A judgment upon a matter outside of the issue must, of necessity, be altogether arbitrary and unjust, as it concludes a point upon which the parties have not been heard.”' (Falls v. Wright, 55 Ark. 562, 18 S. W. 1044, 29 Am. St. Rep. 74.) In Reynolds v. Stockton, 140 U. S. 254, 11 Sup. Ct. 773, 35 L. Ed. 464, the court said: “We are not concerned in this case as to the power of amendment of pleadings lodged in the trial court, or the effect of any
The order of the district court directing the sale of the property is reversed and the case remanded for further proceedings. Reversed.