State ex rel. Oudin v. Superior Court

31 Wash. 481 | Wash. | 1903

The opinion of the court was delivered by

Mount, J.

— Application for a writ of prohibition. In the year 1900 M. L. Bergman and others began an action in the superior court of Spokane county, in equity, against C. P. Oudin and others, and subsequently a receiver was appointed to take charge of and operate a pottery plant about which the litigation arose. After a trial of that action a decree was rendered in favor of the defendants. The plaintiffs appealed from that judgment to this court. Pending the appeal the receiver retained possession of the property. The judgment was subsequently affirmed by this court. Bergman v. Oudin, 30 Wash. 703 (70 Pac. 1135). On the remittitur from this court being filed in the lower court, the defendants moved for a discharge of the receiver. This motion was granted, and on March 3, 1903, the lower court made and entered an order discharging the receiver, as follows:

“How on this 3d day of March, 1903, the above-entitled cause came regularly on for hearing on application of the defendants for an order discharging the receiver herein, George E. Cole; and the parties herein appearing in court by their attorneys, and evidence having been offered and considered, and the court being fully advised in the premises, it is hereby ordered and adjudged as follows: (1) That said receiver, George E. Cole, be, and he is hereby, discharged as receiver in this case, and directed to forthwith turn over and deliver to the Oudin & Bergman Eire Clay Mining & Manufacturing Company all its real and personal property, except the sum of $150 in money, which may be retained until the settlement of the receiver’s account; the books and papers of the company to be delivered by him to the company’s secretary, Martin L. Bergman, and the moneys of the company to be paid over to the company’s treasurer, Charles P. Oudin, after first paying the amount hereinafter mentioned. (2) That said receiver forthwith pay into the office of the clerk of this court, for the benefit of Charles P. Oudin and Eva It. Gudin, the sum of $1,447.51, in satisfaction of the judgment in their favor against said company. (3) That he forthwith make a tender to either Thomas E. Conlan or II. L. Bergman of the sum of $8G5, mentioned in the decree herein.”

The money was paid as directed; the plaintiffs Conlan and Bergman accepting the money tendered to them according to the order, and the order was fully complied with hy the receiver, as directed hy the court, except- that before he had turned over the pottery plant, books, etc., an appeal was taken hy the plaintiffs from the order discharging the receiver, and the court, upon motion of the appellant, fixed the supersedeas bond on appeal, which was given; and thereupon the lower court assumed to exercise jurisdiction over the pottery plant, and to maintain the receiver in possession thereof, and now threatens to punish the defendants for contempt of court if they, or any of them, attempt to interfere in any way with the possession of the receiver. Xo defense is offered to this application, except that the order discharging the receiver has been superseded, and also that- the relator has a remedy hy appeal. Tt, is not suggested hy counsel for respondents, in his brief or in his oral argument, what the relator could appeal from. ITe certainly cannot appeal from the order of discharge of the receiver, for that order was made upon his motion, and is in his favor. It. is not even contended that relator could appeal from tire order fixing a supersedeas bond. If relator cannot appeal from one of these orders, then it is difficult to understand wherein he has an adequate remedy hy appeal.

The remaining question is, does the giving of the stay bond on appeal reinstate the possession of the property in the hands of the receiver ? It is argued by relator that the order of final discharge is not an appealable order. We do not desire at this time to decide this question, because it is not necessary in this case, and, further, because that question will more properly arise in the case here on appeal. The final decree in Bergman v. Oudin did not provide for the retention of the receiver thereafter. For that reason the order discharging the receiver followed as a matter of course upon the affirmance of the judgment of the lower court in Bergman v. Oudin, supra. The order was self-executing, and immediately terminated the right of the receiver to withhold possession of the property from the parties entitled thereto under the decree as affirmed by this court, and therefore falls squarely within the principle announced in Fawcett v. Superior Court, 15 Wash. 342 (46 Pac. 389, 55 Am. St. Rep. 894). The supersedeas bond therefore did not reinstate the receiver, or authorize the court to maintain possession of the property.

Tt was stated by counsel for respondent on the oral argument that there was no contention over the accounts of the receiver, and that these accounts had all been settled. There is nothing, therefore, for the receiver to do. The cause in which he was appointed has been finally determined. All the issues which were or could have been litigated between the parties were litigated, and are at an end. The receivership should also end.

We think, under the showing made, the court is exercising and threatening to exercise authority without his jurisdiction, and the writ is therefore granted as prayed. Oosts in favor of relator.

Dunbar, Hadley, and Anders, <TJ., concur.