Stacy v. McNicholas

Mr. Justice Ramsey delivered the opinion of the court. On August 5, 1910, L. C. Hudson was appointed receiver of the mining property described in the complaint. On July 10, 1911, said receiver was discharged. On February 24, 1913, the court below appointed J. F. Reddy receiver of said property. It seems that some or all of the mining property described in the complaint belonged to the Old Channel Mining Company, an Illinois corporation, and that on August 18, 1913, the District Court of the United [170] States for the District of Oregon made and entered an order adjudging said corporation to be bankrupt, and William Ulrich, one of the appellants, was appointed by said United States District Court trustee in bankruptcy of said corporation, and he duly qualified as such trustee. Said trustee in bankruptcy claimed the right to the possession of said mining property as trustee of said corporation, under the bankruptcy laws of the United States. On September 18,1913, he petitioned the court below for an order thereof authorizing and requiring J. F. Eeddy, said receiver, to turn over to him said mining property as trustee in bankruptcy of said corporation. The court below refused to grant the prayer of his petition. In February, 1914, 31 holders of receiver’s certificates issued in this cause applied to the court below for a decree for the sale of said mining property by J. F. Eeddy, receiver of the property of said bankrupt corporation, it being claimed by said petitioners that J. F. Eeddy was the receiver of said property. The appellant William Ulrich, as trustee in bankruptcy of said corporation, filed in said court written objections to the granting of the relief asked by said petitioners, in which he claimed, inter alia, that the order of the court below appointing J. F. Eeddy receiver of said property was void, and that Eeddy did not qualify as such receiver until after the petition to have said corporation adjudged a bankrupt was filed in the United States court. He claimed, also, that he was in possession of said property as trustee, and that he, as trustee, was duly authorized to sell said property, and that the United States District Court for the District of Oregon had issued an injunction restraining J. F. Eeddy, as receiver of said property, from in any manner interfering with said property or with the control of said trustee over the [171] same. Said trustee prayed said court mot to authorize J. F. Reddy, as receiver, to sell said property, etc. The application of the various interested parties for the relief referred to supra, and to which the appellant "William Ulrich, as trustee of said bankrupt corporation, objected as stated above, came on for hearing in the court below on the 6th day of April, 1914, and on that day a decree was rendered by said court containing many provisions, and among them, a provision directing J. F. Reddy, as receiver, to apply to the United States District Court for an order dissolving all restraining orders issued by said United States court pertaining to said mining property, and ordering J. F. Reddy, as receiver, upon the dissolution of said restraining orders issued by the United States court, to proceed and advertise the property of the Old Channel Mining Company in Oregon for sale and to sell the same in the manner stated in said decree, etc. The appellant Ulrich, as trustee, appeared in said proceeding and opposed the granting to Reddy, receiver, the power to sell said property, claiming that Reddy was not legally receiver of said property, and that the appellant, as trustee in bankruptcy of said corporation, was in possession thereof and had the right to sell it, and was endeavoring to do so. The Old Channel Mining Company and William Ulrich, its trustee, appealed from the whole said decree. 1. The respondents moved to dismiss the appeal on the ground: “That the record fails, to show any appeal taken within the time limited by law from any appealable order, judgment, or decree made or entered in said court and cause.” [172] The notice of appeal states that the appellants appeal— “from the decree of the Circuit Court of the State of Oregon, for the county of Josephine, and from the whole thereof, rendered and entered in the above-entitled suit on or about the 6th day of April, A. D. 1914, said decree being in favor of the petitioning holders of receiver’s certificates and J. F. Reddy and against William Ulrich, as trustee in bankruptcy of the Old Channel Mining Company.” The notice of appeal properly describes the decree appealed from. The decree is dated April 6, 1914, and it is favorable to the holders of receiver’s certificates and J. F. Reddy and against William Ulrich, trustee in bankruptcy of the Old Channel Mining Company. The notice of appeal appears to have been served on the 3d and 4th days of June, 1914. The undertaking for the appeal was seiwed and filed within the time allowed by law. Under the present statute (Laws 1913, pp. 617, 618), if the appeal is not taken in open court at the time of the rendition of the judgment or the decree or final order appealed from, it must be taken by serving and filing the notice of appeal within 60 days from the entry of the judgment, decree or order appealed from, and the undertaking for the appeal must be served and filed within 10 days from the giving or service of the notice of the appeal. We find that the appeal from said decree was taken within the time allowed by law therefor. 2. The decree appealed from was not rendered by default. It was based on a showing made shortly before its rendition. In this proceeding, Ulrich, trustee in bankruptcy, appeared, filed and presented objections to the application for a decree for the sale of said property then made, and his objections were overruled. [173] The decree appealed from appears to have been made upon the petition of 31 holders of receiver’s certificates, asking for a decree for the sale of the property of the Old Channel Mining Company. The decree appealed from was based on this petition rather than upon the original complaint. We hold that the appellants had a right to appeal from said decree. 3. In the abstract the appellants set forth 19 alleged errors, for which they ask a reversal of the decree appealed from, and they refer to various orders made by the court below that they assert were erroneous. The respondents contend, by their motion to dismiss the appeal, that as to most, if not all, of these orders the time for appealing therefrom had expired prior to the date of the taking of this appeal. But this appeal is taken only from the decree rendered on April 6, 1914, and the notice of appeal does not refer to any other decree or order. Section 558, L. O. L., provides that, upon an appeal, the appellate court may review any intermediate order involving the merits or necessarily affecting the judgment or decree appealed from. To what extent those orders can be reviewed on this appeal will be a proper question for consideration on the trial on the merits; but it is not proper to consider that question on a motion to dismiss the appeal. The decision of the court in granting the decree for the sale of the property of the Old Channel Mining Company can be reviewed on the appeal, because that is the chief thing incorporated into the decree appealed from, but what else may be reviewed at the trial on the merits it is not proper to determine on this motion. The fact that there is a question that can properly be reviewed at the hearing on the merits necessitates the denial of the motion to dismiss; the appellants having perfected their appeal in accordance with the statute. The mer [174] its of the case cannot be considered or determined on a motion to dismiss the appeal. 3 Cyc., page 197, say: “On a motion to dismiss [an appeal], the appellate court will not pass on the merits of the appeal. And in case that, in passing on a motion to dismiss, the court would be required to examine the entire record, the motion will not be considered until final submission on the merits.” In Elliott’s App. Proc., Section 522, the author says: “A motion to dismiss [an appeal] does not involve any questions concerning the merits of the controversy; it simply brings in question the effectiveness of the appeal. On such a motion the court will only inquire whether the appeal lies and whether it is properly taken and perfected.” 3 Cyc. Pl. & Pr., page 347, says: “The inquiry on a motion to dismiss [an appeal] is accordingly limited to ascertaining whether an appeal lies in a given case, and whether it has been regularly taken and perfected. ’ ’ 2 Hayne on New Trial and Appeal (Revised ed.), Section 272, says: “Nor should an appeal be dismissed in advance of the hearing on the merits, upon the ground that the appellant is merely a formal party, and has no real interest in the controversy, or that the appeal was taken for delay, or that the matter has been decided on a previous appeal. These questions cannot be determined in advance of a hearing on the merits, and the court will never consider the merits on a mere motion to dismiss.” In Corder v. Speake, 37 Or. 105 (51 Pac. 647), the syllabus is in part: “A motion to dismiss an appeal or to affirm a judgment proceeds on the theory that the appellate court is [175] without jurisdiction, or that the appellant has not complied with some rule of court, and unless one of these conditions is made to appear, the motion must be overruled. In passing on a motion to dismiss an appeal, the merits of the case will not be considered. ’ ’ Department 2. Statement by Mr. Justice Bean. This is an appeal by the Old Channel Mining Company, an Illinois corporation, and William Ulrich, its trustee in bankruptcy, from a decree authorizing J. F. Reddy, the receiver, to sell certain property belonging to the above corporation and confirming as liens against such property certain receiver’s certificates issued under a prior receivership. The pleadings show that prior to August 10, 1909, the Old Channel Mining Company was the owner and in possession of certain placer mining ground and mining property situate in Josephine County, Oregon. This company on the above date entered into a contract whereby it was to sell its property to James H. McNicholas for $110,000, on terms of $25,000 cash and $85,000 represented by notes secured by mortgage on the property. In order to facilitate matters, the legal title of the property was placed in the name of Thomas W. Browning, who held the same as trustee for the corporation. The sale was consummated, and Browning executed a deed; McNicholas paying the agreed amount in cash and executing a mortgage on the property for the balance. McNicholas thereafter organized the Old Channel Hydraulic Mines Company, to which on May 2,1910, he transferred the property purchased from Browning. This latter company assumed the payment of the mortgage given by McNicholas as part payment for the mine. The Old Channel Hydraulic Mines Company did not prosper, and the plaintiffs, being stockholders, brought this suit, asking for an accounting by McNicholas and the appointment of a receiver. The court appointed L. C. Hudson as receiver. [175] The respondents contend that most of the matters referred to in the appellants’ assignment of errors cannot be reviewed on this appeal, because they transpired more than 60 days prior to the taking of the appeal. They can present their contentions on those points at the hearing on the merits, but not on this motion to dismiss. We conclude that the appellants had a right of appeal from the decree of April 6,1914, and that they properly perfected their appeal. The motion to dismiss the appeal is denied. Motion Denied.