Spaulding v. Coeur D'Alene Railway & Navigation Co.

QUARLES, J. — The record in this case is very voluminous, and covers 621 printed pages. The facts necessary to be noticed are, briefly, as follows: That in 1887 the respondent, Spaulding, commenced an action against the appellant the Coeur D’Alene Eailway and Navigation Company to recover upon a claim for construction work upon said appellant’s railroad in this state, which- action finally resulted in a judgment in favor of the respondent and against said appellant, rendered April 26, 1896, for the sum of $36,587, which judgment was afterward affirmed by this court on appeal (5 Idaho, 528, 51 641 Pac. 408). Upon this judgment an execution was issued against said judgment debtor, Coeur D’Alene Eailway and Navigation Company, placed in the hands of the sheriff of Kootenai county, and by said sheriff returned “No property found.” Thereafter the said judgment creditor, the respondent, Spaulding, filed, May 3, 1898, in the district court below, his verified petition setting forth said facts, and alleging that the appellants the “Northern Pacific Eailroad Company and the Northern Pacific Eailway Company have, or claim to have, some interest” in and to the said railroad upon which said construction work was done. The petition contained the following prayer for relief, to wit: “Wherefore your petitioner prays that any and all claims or pretended claims of the said Northern Pacific Eailroad Company and the said Northern Pacific Eailway Company be declared subsequent, subject, and inferior to the said judgment of your petitioner; that a receiver be appointed by this honorable court to take possession and control of all the properties heretofore described, and to proceed with all due diligence to sell the same, and apply the proceeds of said sale toward the payment of the judgment of your petitioner herein set forth, and for said purpose that the said receiver be directed and empowered, whenever necessary or proper, to manage, operate, and control the steamboats, railroads, and other property in this petition set forth, and to take all steps necessary in the premises, which may from time to time be necessary and proper under the directions and order •of this court, and to apply the proceeds arising from the operation or sale of said property to the payment of said debt; and your petitioner prays for such other and further relief as to the court may seem equitable, proper, and just.” To this petition the appellants, after notice to them, filed an answer denying many of the affirmative allegations of said petition, and affirmatively alleging facts showing that the Northern Pacific Eailway Company asserted and was asserting a claim to said property, and to the title thereof, adversely to the said .judgment debtor, the Coeur D’Alene Eailway and Navigation Company. The petition and proceedings thereunder were had under the provisions of chapter 3, title 9 of the Code of Civil 642 Procedure, covering sections 4504 to 4511 of the Revised Statutes, both inclusive, providing for “proceedings supplementary to the execution,” and came on for hearing before the district judge sitting at chambers, and was determined by said district judge at chambers on the twenty-seventh day of' July, 1899,-who, by order then made, held said property, notwithstanding the adverse claim of the said Northern Pacific-Railway Company, subject to the debt of the respondent, and appointing a receiver to take charge of the property and to-sell the same, or so much thereof ’as necessary to satisfy said judgment. Prom the order appointing a receiver and directing him to subject the said property to the respondent’s debt, the appellants moved for a new trial, which was denied, whereupon said appellants appealed from said order denying a new trial, and also from said original order. The order appealed from is, in effect, a final judgment, which, if valid, settles the rights of the parties, and determines the adverse claim of the appellant the Northern Pacific-Railway Company to the property sought to be subjected to-respondent’s debt against said appellant. There are numerous assignments of error, both in the bill of exceptions and in-appellants’ brief, touching the rulings of the district judge during the trial, nearly all of which affect the merits of the-controversy, but some of them go to the jurisdiction of the district judge to render the decree or order appealed from.. Under our view of this case, it is not necessary for us to pass-upon the merits of the controversy. Section 4510 of the Revised Statutes is as follows: “If it appears that a person or-corporation, alleged to have money or property of the judgment-debtor, or to be indebted to him, claims an interest in the-money or property adverse to him, or denies the debt, the-court or the judge may authorize, by an order made to that effect, the judgment creditor to institute an action against such person or corporation, for the recovery of such interest or-debt, and the court, or judge, may, by order, forbid a transfer, or other disposition of such interest or debt, until an action can be commenced and prosecuted to judgment. Such order-may be modified or vacated by the judge granting the same, or643 the court in which, the action is brought, at any time, upon such terms as may be just.” Said section prescribes the duty of the court or judge. If, as in the case at bar, it appears that a person or corporation alleged to have property of the judgment debtor claims an interest in the property adverse to him, “the court or judge may authorize, by an order made to that effect, the judgment creditor to institute an action for the recovery of such interest.” This statute is plain, and free from ambiguity. It needs no construction. It prescribes the jurisdiction of the “court or judge,” and limits such power to making the orders therein named. We regard the conclusion that the order appealed from is coram non judice as inevitable. The judge had no jurisdiction to make it. The question of jurisdiction is never waived, and it was the duty of the district judge to determine his authority to act before assuming to act. His failing to do so, but assuming to act without jurisdiction, does not relieve this court from the duty of determining the question of jurisdiction. That an order of the kind under consideration is void, see the following authorities, wit: Lindenthal v. Burke, 2 Idaho, 571, 21 Pac. 419; McDowell v. Bell, 86 Cal. 615, 25 Pac. 128; Lewis v. Chamberlain, 108 Cal. 525, 41 Pac. 413. We are forced to -conclude that the order appealed from, in so far as it affects the adverse claim of the Northern Pacific Eailway Company in and to the property claimed by it, and sought to be subjected to respondent’s debt, is absolutely void, and that portion of the same appointing a receiver and prescribing his duties is erroneous, as said section 4510 provides for adequate protection to the respondent, and a receiver was unnecessary. Both of the orders appealed from are reversed, and the cause remanded for further proceedings in conformity with the views herein expressed. Costs of appeal awarded to the appellants. (December 18, 1899.) Huston, C. J., and Sullivan, J., concur.