58 Neb. 371 | Neb. | 1899
This is an original application for a writ of mandamus to require the respondent, one of the district judges of the fourth district, to fix the amount of a bond to effect a supersedeas of an order made in a proceeding before him. The essential facts stand admitted of record. In Í896 the German Savings Bank, a corporation, was engaged in the banking business in Omaha under the state laws. In pursuance of the provisions of the banking act (Compiled Statutes, ch.S) an application was made for the appointment of a receiver to wind up the affairs of the bank, it being charged that the bank was insolvent and was conducting its business in an unsafe manner. A receiver was appointed, and he took possession of the assets and has ever since been engaged in administering his trust. In January, 1899, the district court, the’respondent presiding as judge, made, on the application of numerous depositors, an order directing the receiver, at a time fixed in the order and after advertising as therein specified, to sell all the assets of the bank remaining in his possession, including a large amount of real estate. The corporation took an exception to this order, and seasonably
The case may be quickly narrowed in its scope, and much of the argument laid aside, by the simple statement that unless the order be' one within the provisions of the third subdivision of the section cited, then there is no provision giving the relator the absolute right to a supersedeas. Unless that provision applies, the order could be superseded only in the discretion of the court. Such discretion cannot be controlled by mandamus, and, under the facts disclosed by this record, we certainly Avould not, even if Ave could in such an action, interfere with the action taken by the district judge. If, on the other hand, the order does fail within that provision, then the legislature has given an absolute right to a supersedeas on. complying therewith, and we must award the writ. While it is true, as argued, that the allowance of a writ of mandamus is discretionary, still no court would be justified in refusing its aid when to deny it would deprive a party of an absolute substantial right guarantied by-statute.
The section cited, so far as it may be applicable, is as follows: “No appeal in any case in equity, now pending and undetermined, or which shall hereafter be brought, shall operate as a supersedeas, unless the appellant; or appellants, shall, Avithin twenty days next after the rendition of such judgment, or decree, or the making of such final order, execute to the adverse party a bond with one or more sureties, as follows: * * * Third— When the judgment, decree, or order directs the sale or delivery of possession of real estate, the bond shall be in such sum as the court, or judge thereof in vacation, shall prescribe, conditioned that the appellant, or appellants, will prosecute such appeal without delay, and will
As the order sought to be superseded expressly directs the receiver to sell real estate, it seems to fall prima facie within the section, and it is appropriate to look first to the arguments on behalf of the respondent to see whether any reason is given why it is not applicable.
It is contended that the order is not appealable. If not, then of course it is not supersedable. Section 275 of the-Code of Civil Procedure makes appealable all orders “appointing receivers, giving them further directions, and disposing of the property.” This is clearly an order giving further directions, and disposing, or ordering the disposition, of the property. But it is said that the'banking act contains special provisions concerning such matters; that the ordinary procedure is not applicable. Indeed, the argument is that the banking act provides a summary method of winding up an insolvent bank, and •if any order be appealable, it is only that appointing the receiver in the first instance; that thereafter the functions of receiver and court are administrative and their acts not subject to review. It is said that.this is the clear policy of the act. If so the act is clearly unconstitutional, and we áre by no means disposed to so hold. Sections 34 and 35 of the banking act provide that the attorney general shall apply for a receiver whenever it shall appear to the banking board, “from any examination or report,” that certain facts exist. Provisions are then made for the liquidation of debts, conversion of assets, and complete winding up of the affairs of the bank. It would be monstrous to say that an inspection of a report, or a consideration of the result of an examiner’s work, by an administrative board, should lead to a summary taking and disposition of property, without any hearing other than that on the application for a receiver. If the proceeding be judicial, it implies a right to be heard according to the usual procedure; if it be not judicial, then there is no due process of law, and the
It is also urged that the corporation consented to the order appointing the receiver, and cannot now be heard to resist this order, which is in effect one only to carry out the former. In State v. German Savings Bank, supra, it was held that the corporation remained a party to the suit, and might be heard on applications'for further directions. It was, as a matter of safety, suggested that perhaps the corporation, by consent to such appointing order, might estop itself from resisting a subsequent order “clearly for the purpose merely of carrying out the order to which it did consent.” If this order were solely for the purpose of carrying out the first, and if it involved no new features on which the relator had a right to be heard, then the exception there suggested would apply. But the order appointing the receiver did not direct him to sell the real estate. On the contrary, it contained this provision: “That such sale or sales of real estate, if any there be, among the assets of said defendant bank, be solely upon such terms and at such times as shall hereafter be ordered!” The necessity or propriety of such a sale, the expediency and justice of the time and of the terms, are certainly matters on which the bank should have a hearing. The further order would not be merely to carry out the first, but would extend to matters not involved in any way in the consent given to the first order. It is argued, however, that section 35 of the banking act in itself confers the power of sale on the receiver, and that the' direction of a sale of the real estate flows by
We are convinced that the order is not only appealable, but'that it falls Avithin the express terms of section 677, supra, and may be superseded as a matter of right. It was held in Home Fire Ins. Co. v. Dutcher, 48 Neb. 755, that an order appointing a receiver, Avhile appealable, cannot be superseded as a matter of right. To this we adhere; but the inference is against the respondent.
Let us suppose tha’t the statute, instead of providing for a receivership, authorized direct actions by creditors and subjected the property to a lien in their favor. In a suit to foreclose such lien there can be no doubt that the order directing the sale would fall within section 677 and be supersedable as of right. The situation is not changed, nor the statute evaded, by resorting to the de-' vice of a receiver and so making two orders to accomplish the same purpose — one giving the receiver posses-sion, the other directing him to make the sale.
Writ allowed.