5 Utah 394 | Utah | 1888
The defendant corporation makes application for an appeal to the supreme court of the United States, under section 692, Rev. St., U. S., from the order heretofore made herein appointing a receiver. The complaint prayed that a receiver be appointed by the court to take charge of the property during the pendency of the suit, and a motion was made for the appointment of a receiver “as prayed in the complaint.” The motion was heard upon an agreed statement of facts; it being a part of the stipulation that the facts therein stipulated should be used upon the hearing of the motion, and for no other purpose whatever. At the time the motion was heard, the defendants had filed a general demurrer to the complaint for want of equity. The motion was heard and granted by this court November 5th, last; the opinion of the court being read by the chief justice, and reported, ante p. 361. This opinion recites fully the complaint, and the law under which it is filed. Pursuant to that opinion, an order was entered appointing a receiver, as prayed in the complaint.
Tbe right to appeal is purely statutory, and therefore depends entirely upon tbe construction of tbe particular statute upon wbicb an appeal is claimed. We have been referred by counsel for defendant to a large number of cases from tbe various states construing various statutes thereof, from wbicb tbe general rule may be deduced that under statutes allowing an appeal from final orders and decrees, in determining whether an order or decree is final and appealable, tbe court will look at tbe substance and effect, rather than to tbe form, or tbe time when it is made. And in applying this general rule to orders appointing receivers, if it is found tbat tbe order finally adjudicates and disposes of tbe subject-matter of tbe litigation so far as it can be done in tbe action, or any part of it, then it is appealable. But if the complaint brings into court a subject-matter ancillary to tbat in wbicb tbe court is or may be charged with tbe care, distribution, disposition, or application of a fund or property, and tbe court makes a preliminary order appointing a receiver to bold tbe property for it, awaiting final determination of the principal question, it is not final. And the rule bas been applied with varying results according to the facts under consideration. Thus, in Michigan, where tbe .rule as above stated bas been repeatedly declared: Kingsbury v. Kingsbury, 20 Mich., 212; Duncan v. Campau, 15 Mich., 415;
In the supreme court of the United States the statute under consideration has been repeatedly construed, and substantially the same general rule has been declared: Railway Co. v. Express Co., 108 U. S., 24, 2 Sup. Ct. Rep., 6; Forgay v. Conrad, 6 How., 204; Trustees v. Greenough, 105 U. S., 527; Dainese v. Kendall, 119 U. S., 53. In the case last cited, Chief Justice Waite, in deciding the case, gives a general definition of a final decree, as follows: “A decree, to be final for the purposes of an appeal, must leave the case in such a condition that, if there be an affirmance in this court, the court below will have nothing to do but to execute the decree it has already made. In Forgay v. Conrad, supra, the court says: “And when a decree decides the right to the property in contest, and
It is insisted that the act under which the complaint is brought decláres the dissolution of the corporation, and that the distribution of the property follows as a necessary consequence, so that the validity of the act is the only real question involved; and that, in passing upon the motion, the court decided this question, and that it is therefore final. And counsel refer to the opinion of the court in support of this view. One ground, and indeed the principal one, urged against the appointment of a receiver, was the unconstitutionality of the law; and, in passing upon the motion, this court necessarily considered it, and gave expression to its opinion as a reason, for making the order. But it was only passed upon for the purposes of the motion. Neither the opinion, nor the order made upon it, constitutes the decree or final order. When the cause is brought to hearing, upon being-perfected for that purpose, if the aspect of the cause has not changed, the opinion before expressed, if not changed on future deliberation, would pass into a decree, and be the subject of appeal. But the court would not be concluded by the opinion before expressed. If, for example, the supreme court of the United States should, before this case is finally heard, make a decision in some other case ponding before it, which in our minds was conclusive in favor of defendants, then the decree would be entered herein accordingly. It frequently happens that on some preliminary -motion the court is called upon to express an opinion more or less strong in relation to the merits of the controversy; but the order made thereon is not for that reason a final order: Wing v. Warner, 2 Doug. (Mich.), 288.
On the hearing of the motion for a receiver, it was argued on both sides by eminent and able counsel, and the arguments proceeded upon the theory that the order asked for was interlocutory. Indeed, it was one of the grounds strongly urged by counsel for defendant against the granting of the order. Ool. Broadhead in his argument as published, in stating the question presented, said: “Whether
We should be glad if the case was in condition to give it to the supreme court to determine the important questions involved, but we feel constrained to hold that the order is not appealable. The motion is denied.