United States National Bank v. National Bank of Guthrie

Opinion of the court by McAtee, J.: We have thus reviewed the findings in each particular instance for the purpose of showing that — 180 — each, conclusion and judgment wras supported by evidence, showing in itself as to each statement that facts sufficient in themselves upon each point were under the consideration of .the judge of the district court upon each point passed upon. When this is the case and when there is any evidence upon which such findings 'are made it will not be reviewed here. (Light v. Canadian County Bank, 2 Okla. 543; National Bank of Guthrie v. Earle, 2 Okla. 617; McClure v. United Stales, 116 U. S. 145.) It was said in Hathaway v. First National Bank, 134 U S. 609, by the circuit court of the United States for the district of Massachusetts, that “the court having heard the evidence it was like a jury, the sole judge of the credibility of the witnesses who appeared before it, and the questions were questions of fact on the evidence. It would serve no good purpose to examine the evidence critically, nor is it our province to do so. It is sufficient to say that the case was not one where there was no evidence to justify the findings of the court.” And it was declared in that case, upon authority, that, not only will the findings of fact by the lower court on the weight of the evidence not be reviewable on appeal, but that where an ultimate fact is found by the lower court, its finding or the refusal to find as to any incidental fact, which has appeared to evince the ultimate facts, will not be reviewed by, the supreme court. (Following Ins. Co. v. Allen, 7 Sup. Ct. Rep. 821.) And we must here conclude, that the conclusion of the court having been supported by evidentiary facts upon each proposition, and upon each disputed ground, that its judgment will not be here reversed. The court, Judge Burford, attached no value to the — 181 — oral directions of tlie judge who appointed the receiver, holding that such orders should at the time have "been reduced to writing, and that the court being a continuous one, and not at the time having made- the orders which are here brought before us upon error, is not estopped from passing upon the matters in which written orders have not been obtained. We think this holding correct. It has, indeed, been held that such an interest as the court had in this case disqualified him from acting. (Gay v. Minot, 3 Cush. 352.) And that the judge having been interested as a debtor of the estate disqualifies him. (Paine v. Thayer, 105 Mass. 222.) And that where a judge is interested the usual practice is to announce the fact and make the entry on his docket. (Moses v. Julian, 45 N. Hampshire, 52.) The evidence shows that the judge who made the order appointing the receiver was a debtor of the bank, and that the receiver having been appointed, he thereby became the debtor of the receiver on behalf of the trust, and in a position where indulgent conduct toward the receiver might be reciprocated by indulgent treatment of the judge presiding in the court. Upon such a situation it was said by Lord Campbell, chief justice, in the case of Dimes v. Proprietors of Grand Junction Canal, that:— “It is of the last importance that the maxim that ‘no man is to be the judge in his own cause/ should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. * * * We have again and again set aside proceedings in inferior tribunals, because an indi — 182 — vidual who had an interest in a cause, took a part in the decision. And it will have a salutary effect upon these tribunals when it is known that this high court of last resort, in a case in which the lord chancellor of England had an interest, considered that his decree was on that account not according to law, and should be set aside. This will be a lesson to all inferior tribunals to take care, not only that in their ’ decrees they are' not influenced by their personal interest, but to avoid the appearance of laboring under such an influence.” Upon the point of the compensation of the receiver the rule is well established that it will only be allowed when he has not neglected his duty or exercised bad faith in the conduct of the trust, committed a breach of his obligation in any way, and that it will not be allowed in a case of gross neglect or unfaithfulness, as, where he has kept no proper accounts, and has put the trust to a great deal of trouble, in determining his rights, and that if he neglects and wilfully mismanages a trust estate he can not recover compensation for his services. (27 Amer. & Eng. Enc. of L. 187, and cases cited; Crook v. Lowery, 95 N. Y. 10; Thompson Estate, 35 Pac. Rep. 991.) And it was held in Wisely v. Cobb, 24 S. E. Rep. 782, that “An allowance of $1,824.85 as commissions to the trustee of a partnership estate for the collection of and disbursement of $19,682.99, part of which arose from public and private sales of partnerslnp property, is excessive; $773 having also been allowed for clerk hire.” The court below was, at least, liberal in its allowance of compensation under the circumstances, and no review of the order made upon that point will be had, since no cross errors have been assigned. — 183 — The case began in illegality and in violation of the statute, since it was provided in the Statutes of Oklahoma, 1890, in force at the time of the appointment, sec. 5110, that “No party or attorney or other person interested in an action shall be appointed receiver therein.” The evidence shows that Mr. Cunningham was the attorney for the insolvent bank and claimed to be its creditor, and it is not an over statement of the case to say that, not only was the statute thus violated, but that all the steps of the trust are claimed to have been conducted up to the time the case was assigned to Judge Burford, under an interested judge. An inventory of the estate was not made as it should have been immediately by disinterested appraisers. Important expenditures were incurred and assets disposed of without any written order or showing made to the court. The receiver made no íegular report or showing of his proceedings in the' estate. The settlement of the estate was procrastinated. The interests of the receiver were preferred to those of the trust. The receiver was entirely ignorant of bookkeeping, of banking, got confused when he examined the books, not having tried to. qualify himself for the trust. That he erased his name from the answer of the defendant bank in court, and that the only rule of compensation which seems to have been adopted was to take everything in sight. The money of the trust was appropriated to the private uses of the receiver, upon claims not due from the estate to the receiver. He never submitted his proceedings in the trust properly to the court by statement made of record to be passed upon. When finally forced to make a showing of the manner in which he had administered his trust, he sought to justify the — 184 — expenditures and compensation sought for out of the estate, by taking the ex parte affidavit of Ju&ge Oreen, no notice having been given that such testimony was to be taken, or intended to be taken. No room is furnished by-the evidence to review the discretion and conclusions, findings and judgment of the district court, and they will be affirmed. Bierer, J. and Keaton, J., concur in the conclusion reached in affirming the judgment of the trial court on the general finding of facts based upon the evidence in the case; Tarnsney, J., not concurring and reserving the right to file a dissenting opinion; Dale C. J., not sitting.