Motor Sales & Service Co. v. J. D. Kerr Gravel Co.

On Motion to Dismiss. OVERTON, J. These suits were instituted for the purpose of having a receiver appointed for defendant. On the return day fixed for defendant to show cause why a receiver should not be appointed, Theodore Dendinger, Sr., and several other stockholders intervened, opposing the appointment of one. The cases were tried and a receiver was appointed for defendant on June 21, 1924. On June 27, 1924, six days after the entry of the order, appointing a receiver, interveners obtained an order of appeal in each case, and on the same day perfected the appeals by furnishing the required bonds. The appeals were made returnable to this court, to quote from the orders granting them, “on June 30, 1924, according to law.” On the day fixed for the return 'of the appeals, this court, on the application of appellants, extended the return day to July 21, 1924, on which day the transcript was filed. Appellees have filed a motion in this court to dismiss the appeals. The motion may be said to be based upon four distinct grounds, of which only one has been noticed in the brief filed in support of the motion. The ground noticed is disclosed by articles 2 and 3 of the motion, which read as follows: “II. That the return day fixed by the order of appeal and prayed for in the petition of appeal filed by said interveners is not such a return day as is fixed and provided for by law for an appeal from an order appointing a receiver. “III. That this appeal is made returnable to this court in less than 15 days from the date of the order of appeal.” In other words, as appears from their brief the contention of plaintiffs and defendant is that the appeals in this case were taken under the first sentence of section 4 of Act 159 of 1898, which is a part of the law governing the appointment of receivers, when they should have been taken under Act 106 of 1908, which provides for the fixing of the return day for appeals generally, save, by construction, in certain instances specially provided for by other laws. The difference stressed by appellees between the two methods of appeal is that in the former the appeal, by law, is made returnable in 10 days, whereas in the latter the trial judge is directed to fix the return day in the order granting the appeal, which, unless otherwise agreed to by the parties, must not be less than 15 days nor more than 60 days from the date of the order. Hence the contention of appellees seems to be that the appeals should be dismissed, as they were granted on June 27, 1924, and-made returnable, without the consent of the parties, on the 30th of the same month — only three days after the date of the order granting them. The appeals, as contended for by plaintiffs and defendant, wefe granted and perfected under the first sentence of section 4 of the act cited. The entire section reads as follows : “Any person or persons who by affidavit appear to be interested, on giving bond in a sum to be fixed by the court, may appeal in the face of the record from any order appointing, or refusing to appoint a receiver, granting, or refusing to grant an injunction as aforesaid; such an' appeal when perfected shall have the effect of suspending the functions of such receiver, except to perform such administrative acts as may be necessary for the preservation of the property; provided that such appeal must be taken and perfected within ten days from the entry of the order appointing or refusing to appoint a receiver, or granting or refusing to grant an injunction. Such appeal shall be returnable in ten days from the date of such order, and shall be tried by preference in the appellate court. Any interested party may apply within *331 thirty days after the entry of the order of appointment of a receiver to vacate same on legal or just grounds, and may appeal from an adverse judgment, but such appeal shall not suspend the functions of said receiver in any way. The value of the property confided to the receiver shall determine the jurisdiction of the appellate court.” The contention of appellees is that the first sentence of the section quoted, as appears from the language used, does not include appeals taken by one of the parties to the suit, but has reference only to appeals taken by parties at interest, but who are strangers to the suit, and that the second sentence of the section, which fixes the return day, relates only to appeals of that class, that is, to those by third persons, as appears from the wording of the sentence and its place in the section; and, as to the third sentence in the section, the contention is, in so far as it relates to appeals, that it has reference only to those from orders vacating or refusing to vacate the appointment of receivers, and not to orders appointing or refusing to appoint them. Prom these premises appellees argue that, as the appellants herein «.were parties to the suit in which the order was rendered, appointing a receiver, and as the only special regulations governing appeals in receivership matters are those found in the section of the act quoted supra, and as this section does not include appeals taken by parties to the suit from orders appointing or refusing to appoint a receiver, appellants should have taken their appeals as provided by Act 106 of 1908, and that, having failed to do so, the appeals should be dismissed. There might be some force in the contention of appellees as to what law governs the taking of appeals in cases such as the present, were the question a new one, but we are not prepared to hold that, even Were appellees’ contention maintained, as to what !law governs, the result would be the dismissal of the appeal. However, the question, as we have said, is not a new one. It has been decided at least twice that appeals by parties to the suit for the appointment of receivers are governed by section 4 of Act 159 of 1898, the section under consideration, and not by the general law. Thus, in the Louisiana Driving & Racing Club Case, 120 La. 268, 45 So. 127, the appellee moved to dismiss the appeal on the ground that the plaintiffs therein, who were the appellants, had not complied with section 4 of the Act of 1898, in that they had not perfected their appeal within the time prescribed by the section. On the other hand, the appellants contended that the section cited did not apply to appeals taken by parties to the suit for the appointment of receivers, but that such appeals were governed by the general law. The court, in passing upon the issue, said: “In State ex rel. Garig v. King, Judge, 104 La. 472, 29 South. 18, this court declared that the General Assembly, in enacting Act No. 159, p. 312, of 1898, authorizing and regulating the practice of appointing receivers, was dealing with a particular subject, and evidently intended to regulate and cover the whole practice concerning that particular matter. That statement has never been withdrawn or modified. Appellants urge that the rule in the statute governing appeals does not refer to appeals taken by the party to the litigation, but to appeals of third parties. It would be strange if a statute intended to cover the whole practice on a particular matter should or could be construed so as not to apply to the parties involved in the litigation.” And in Kerlin v. Bryceland Lumber Co., 134 La. 463, 64 So. 289, the appellee moved to dismiss the appeal on the ground that it was not made returnable under Act 106 of 1908, which is the act that appellees, in the present ease, contend that the appeals herein should have been made returnable under, and this court, in disposing of the motion, said: “This general law [Act 106 of 1908] is without application to appeals from orders appointing receivers, which is governed by a special *333 statute, contained in section 4 of Act No. 159 of 1S9S, p. 312, wherein it is directed that ‘such appeals shall be returnable in 10 days from the date of such order.’ * * * ” Therefore, in view of the authorities cited, and in view of the fact that those authorities seem to be supported by the legislative intent, as gathered from the Act of 1898, our conclusion is that the Act of 1898 governs appeals in such cases as the present, and hence that the appeals taken herein should not be dismissed on the ground urged. Let us assume, however, that the appeals in this case are not governed by section 4 of Act 159 of 189S, but should have been made returnable in accordance with the provisions of Act 106 of 1908, that is to say, on a day which should have been fixed by the judge within the period of not less than 15 nor more than 60 days from the date of the order granting them, still this would not justify their dismissal. The only objection, which then could be urged against the order granting the appeals, would be that the order makes them returnable, without the consent of the parties, before the lapse of the 15 days prescribed by the statute. The error, however, would be one imputable to the official granting the appeals, and not to the appellants ; and hence, while the error would not be permitted to prejudice the rights of the appellees, yet it would not call for or justify the dismissal of the appeals. Wilder v. Jackson, 150 La. 864, 91 So. 245; Ross v. Naff, 130 La. 590, 58 So. 348; Orleans & J. Ry. Co. v. International Const. Co., 113 La. 409, 37 So. 10; Allen v. Henley, 130 La. 861, 58 So. 688. Appellees, asi stated in the first part of this opinion, have included in their motion three other grounds for dismissal. While they have not noticed these grounds in their brief, still we may say that we have examined them, but find no merit in them. For the reasons assigned, the motion to dismiss is denied.