21 Mont. 155 | Mont. | 1898
We think the learned counsel for the respondents has assumed a false premise in his brief, and upon it has constructed his argument. His error lies in the very statement of the question for consideration, which he puts as follows : ‘ ‘Is the person with whom a receiver of a court deposits money or property subject to the order of the court?” No doubt that, if the case were one where the cashier of a depository of a receiver’s funds had refused to obey the order of a court of competent jurisdiction to pay into the receiver’s hands money belonging to him as receiver, and held by the depository as a credit to the receiver’s account, the officer of such depository so refusing would be liable in a contempt proceeding, upon the familiar doctrine that an unauthorized interference with a receiver’s possession constitutes a contempt of court. (High on Receivers, Sec. 164.) Nor will it be denied that the liability of one who interferes with the rights of a receiver or his business by any unauthorized refusal to turn over property or funds to which the receiver is entitled, and for the delivery over of which the receiver has given orders, •would make the one so refusing guilty of a contempt of court. So far, therefore, as these general principles of equity jurisdiction which are relied upon by respondent are applicable, we do not dissent from them. We likewise agree to the proposition that, where one refuses to pay money held by him as a credit to the receiver’s account, upon an order by the receiver made pursuant to an order of court, the party so refusing to pay in a contempt proceeding cannot justify his refusal upon the ground that the appointment of the receiver was improperly made, or even erroneous, for the court will not consider those matters in a collateral proceeding. The writ of cei'tiorari being one of review limited to the determination of whether the inferior court has exceeded its jurisdiction, and regularly pursued its authority, the action of the district court after it assumed jurisdiction and took control through a receiver, however erroneous that action may have been, unless
But here the error of the court in adjudging petitioner guilty upon the facts alleged was one that involved an excess of the court’s jurisdiction. This is apparent, under the decision of this court in State v. Clancy, 20 Mont. 284, 50 Pac. 852, where it was decided that the original complaint filed in the district court of Silver Bow county in the case of J. D. Thomas et al. against Thornton-Thomas Mercantile Company was “virtually a blank paper,” and that for various reasons, stated in the opinion, there was no authority of law to appoint a receiver of the corporation at all upon the showing made. The case, therefore, is not one where there has been a receiver appointed by a competent court with jurisdiction over the subject-matter and of the parties before it, and where the court’s orders were regular, even though erroneous, but one where the court has done.that which is a nullity, and where all the orders, including the one appointing a receiver, and all those subsequent thereto, are absolutely void, and entirely beyond the jurisdiction of the court that made them. (People v. Weigley, 155 Ill. 491, 40 N. E. 300.) Such being the state of the case, the order of the district court appointing the receiver can be assailed collaterally, and with impunity by anybody. (Yan Fleet’s Collateral Attack, Sec. 16.)
The real question for decision, then, is whether the district court in which the receiver was appointed, and in which the court ordered that the receiver pay Lutey Bros, the sum of money named in the order, had jurisdiction to grant the ultimate relief prayed for in the complaint in the original action. And as that question has been answered by this court in the negative, it follows that the court had no power in the proceedings in that action to authorize the receiver to pay over any moneys to his credit in the bank of Clark & Bro. to Lutey Bros, after the same were attached in the hands of the bank. If, after our decision, the Thornton-Thomas Mercan
We are of the opinion that the writ prayed for must issue, and it is so ordered.