State ex rel. Heinze v. District Court of the Second Judicial District

28 Mont. 227 | Mont. | 1903

MR. CHIEF JUSTICE BRANTLY,

after stating the case, delivered the opinion of the court.

The answer presents no> material issue of fact. We shall therefore consider the questions raised by the demurrer. These are : (1) Does an appeal lie from the order of January 31st as from, a final judgment within one year from, the date of entry, and, incidentally, was it the duty of the judge to settle the bill of exceptions presented on April 11th? (2) Under the provisions of the statute, does- a motion for a new. trial lie in a proceeding to settle the accounts of a receiver and to fix his compensation ?

1. Section 1122 of the Code of Civil Procedure, as amended by the Act of 1899 (page 146, Sess. Laws 1899), provides: “An appeal may be taken to- the supreme court from a district court, in the following eases: (1) Erom a final judgment entered in an action or special proceeding commenced in a district court. * * "" (2) * * From an order appointing or refusing to appoint' a receiver, or giving directions with respect to a receivership, or refusing to vacate an order appointing or affecting a receiver.” Section 1723, as amended by the same Act, provides that “an appeal may be taken from a final judgment in an action or special proceeding * * * within one year after the entry of judgment,” and that an appeal may be taken from any of the orders mentioned in Subdivision 2 of Section 1722 within sixty days after the same is entered in the minutes of the court or filed with the clerk.

Counsel for the defendant insist that, if the order for the review of which the bill of exceptions presented on April 11th is intended to furnish the basis is appealable at all, the appeal must be taken within sixty days from the date of it, and that, as this was not donei, the presiding judge may not be compelled to settle the bill, beca,use, the time for appeal having expired, the settlement of the bill would be a useless act. Counsel do not seem to have a clear notion as to whether the order of January 17th or that of January 31st is the one from which the appeal may be taken. The whole proceeding in the court below seems to have been conducted by piecemeal. We are of the opinion that the time within which an appeal may be taken began to run from the date of the final order in thel proceeding, namely, from January 31st. It was only upon the entry of this order that the parties to the controversy could ascertain what their rights were as declared by the court. The proceedings had and orders made up to that time were intermediate, and, like the proceedings and orders upon the trial of an action, were merely the successive steps in the hearing’ which resulted in the final order or judgment determining the rights of the parties. Having reached this conclusion, it is necessary to - decide whether this order is a final judgment within the meaning of the first subdivision of Section 1722, or whether it is an order “giving directions with respect to' a receivership',” and falls in the list of orders enumerated in the second subdivision of that section. If it falls within the first category, an appeal will lie within one year, under the first subdivision of Section 1723; otherwise the second subdivision of the latter section applies, ■ and the time for appeal has long since elapsed.

It will be noticed that the! language of the first subdivision is “from a final judgment in an action or special proceeding,” and not “from the final judgment,” etc. Counsel for the relator argues that the application for a receiver* was. a) special proceeding within the meaning of Sections 3410* and 3472 of the Code of Civil Procedure, and therefore that, the order being a final disposition of the receivership;, the appeal comes within the provision touching special proceedings'. We do not think this the correct view. The appointment -of a receiver is a provisional remedy, which may be had in an action, and cannot be made except as ancillary to and a step in the action, itself. The expression “special proceedings” has no reference to provisional remedies in actions at law or in equity, but to such proceedings as may be commenced independently of a pending action by petition or motion, upon notice/in order to obtain special relief. The provisions touching such proceedings are found in Pai*t III (Sections 1930-3081) of the Code of Civil Procedure1. Provisional remedies by way of injunction, receiverships, etc., are provided for in Part II (Sections. 800-981) of that Code, and are incidental to formal actions brought in the ordinary way. We think, however, that the order falls clearly within the meaning of “a final judgment in an action,” as used in that section, and is not an order “with respect to a receivership.” The expression “with respect to a receivership^’ has reference to an active receiver engaged in the discharge of his duties and the orders made directing him therein. The right of appeal under this provision is granted to' the, parties, and not to the receiver. Nor does it, we thinlc, have reference! to controversies arising between the parties and the receiver" as to his fees and allowances made by the court. The fees' of the receiver may be allowed as costs, and taxed against the losing party upon the entry of final judgment in the action. (State ex rel. Cornue v. Lindsay, 24 Mont. 352, 61 Pac. 883; Hutchinson v. Hampton, 1 Mont. 39 ; Ervin v. Collier, 2 Mont. 605.) But this does not preclude the court upon a discharge of the receiver before the conclusion of the action, as was the case here, from fixing his compensation, and adjudging payment thereof against the party at whose instance he was wrongfully appointed • otherwise the receiver, not having funds in his hands out of which his compensation could be paid, would be compelled to wait until the final determination of the action before his compensation could be allowed and paid. This view, we think, is sound npon principle. The order of January 31st was, in effect, a final judgment, making disipp-sition of the branch of tbe case touching the receivership, and as such, we think, an appeal will lie therefrom at any time within one year from the date of its entry. “A final judgment is not necessarily the last, one in an action. A judgment that is conclusive of. any question in a case is final as to that question. The Code provides for an appeal from a final judgment, not from the final judgment in an action.” (Sharon v Sharon, 67 Cal. 185, 7 Pac. 456, 635, 8 Pac. 709.) This case was an action for a divorce. Pending the action an order was made granting the plaintiff alimony and counsel fees. The defendant appealed. On motion to dismiss the appeal the court held the order ap-pealable under the statute granting the right of appeal from a final judgment. The same conclusion was announced by this court, and .the case of Sharon v. Sharon approved, in the case of In re Finkelstein, 13 Mont. 427, 34 Pac. 847, and in State ex rel. Nixon v. District Court, 14 Mont. 396, 40 Pac. 66. The order under consideration, being in form and effect a final judgment, is entirely aualogus to an order awarding alimony and counsel fees in divorce cases.. The following cases involving questions touching the character and appealability of similar orders are in ppint, and, we think, conclusive: Tuttle v. Claflin, 31 C. C. A. 419, 88 Fed. 122; Daniels v. Daniels, 9 Colo. 133, 10 Pac. 657; Chandler v. Cushing-Young Shingle Co., 13 Wash. 89, 42 Pac. 549; Hecht v. Hecht, 28 Ark. 92; Trustees y. Greenough, 105 U. S. 527, 26 L. Ed. 1157; Williams v. Morgan, 111 U. S. 684, 4 Sup. Ct. 638, 28 L. Ed. 559; Patterson v. Ward, 6 N. Dak. 359, 71 N. W. 543; Hovey v McDonald, 109 U. S. 150, 3 Sup. Ct. 136, 27 L. Ed. 888.

On this branch of the case it remains to consider only whether tbe court should have settled the bill of exceptions tendered on April 11th. The relator was present at the hearing, and had interposed objections to the admission of evidence. He had taken exceptions to adverse rulings upon his objections, as well as to other matters presented and determined against him. It appears from the facts stated in the affidavit that he proceeded within the time allowed by Section 1155 of the Code of Civil Procedure to have the bill settled, and made a part of the record, so as to make his exceptions available on appeal. This he had a right to do under the express provisions of this section as to any ruling adverse to him during the trial to which he reserved exceptions. The court should have settled the bill, and a refusal to do so was tantamount toi a denial of the right of appeal, for, though the appeal would lie whether the bill was made a part of the record or not, the papers and other evidence used on the hearing and the rulings of the court upon the objections of the relator could not be of avail unless incorporated in a bill. (Cornish v. Floyd-Jones, 26 Mont. 153, 66 Pac. 838.)

2. Does a motion for a new trial lie in the proceeding under consideration ? A new trial is a re-examination of an issue of fact. (Code of Civil Procedure, Sec. 1110.) The expression ‘‘issue of fact,” used in its broader sense, would include every issue of fact, whether arising upon formal pleadings or upon a motion. As used here, however, it refers only to issues of fact raised by formal pleadings, as defined in Section 1033 of the Code of Civil Procedure. The definition here given clearly excludes issues arising upon affidavits or oral evidence used on motions. That this is so is made clear by Sections 1113, 1116, and other provisions touching new trials and appeals, all of which contemplate issues arising in actions. There is, therefore, no authority in the Code for a motion for a new trial of a motion. In such erase, if a rehearing in the same court of the matters involved in the motion is desired, the proper practice is to apply for leave to renew the motion. If the purpose is to have it reviewed on appeal, it is sufficient to present to the supreme court the order, with a bill of exceptions incorporating the rulings of which complaint is made. Therefore a motion which does not ask for a decision of an issue of fact arising upon formal pleadings is not the subject of a motion for a new trial. These are the views of the supreme court of California upon identical provisions touching new trials. (Harper v. Hildreth, 99 Cal. 265, 33 Pac. 1103.) We adopt and approve them. It necessarily follows that the court was under no legal duty to settle the statement and bill of exceptions in support of the motion for a new trial. They were not intended to make a part of the record the objections, rulings of the court thereon, and exceptions reserved by the relator during the hearing under’ Section 1152 of the Code of Civil Procedure, as was the bill presented on April 11th, but were intended to* preserve the same matters as the basis of a motion for a new trial under Section 1173. The course of procedure adopted could be pursued only under the provisions of the latter section. Therefore, as the motion did not lie, the proceeding to' settle the statement and bill in support of the motion was a matter without the jurisdiction of the court, and1 the settlement was properly denied.

Rehearing denied June 13, 1903.

In so far as the application seeks a settlement of the statement and bill of exceptions in support of the motion' for a new trial it is denied. The peremptory writ will issue, however, directing and requiring the district judge to settle and.make a part of the record the hill of exceptions presented for settlement on April 11th. ' ' ■