Bowman v. Hazen

The opinion of the court was delivered by Johnston, C. J.: This is a collateral attack on the appointment and action of receivers. To recover from them and those at whose-instance they were appointed — 697 — and acted it must appear that they collected the rent money without authority and that their action to that extent was absolutely void. The history of the case and the facts upon which the trial court based its judgment are included in the foregoing statement, and they are so elaborately and clearly stated as to render a restatement and discussion of them unnecessary. Although some complaint is made, it may fairly be said that the testimony in the record substantially supports all the material findings. They disclose that in the action in which the receiver was appointed nothing was involved but the title of lot No. 165, on Kansas avenue, in the city of Topeka. The title of Branner,who was Hazen’s grantor, to one-half of the lot was not disputed, and the only controversy was whether Josie Webb and Millie Nichols owned the remaining one-half, and that part they ultimately recovered. In that case the decision in the trial court had been given in their favor, and they had acquired possession of their shares in the lot when the receiver was appointed. The trial court undertook to vest the receiver with the custody of other valuable property which was in no way involved in the action wherein the appointment was made. Just why the receiver was given possession of Branner’s half of lot No. 165, when his right to it was conceded, is not easily understood; but when the court undertook to reach out and take custody and control of property which was not the subject-matter of the controversy, it went outside its appointed sphere and its orders in respect to such property were nullities. The court had no more authority over that property than it would have had over the square on which the state-house stands. The fact that the other real estate, which may be termed — 698 — the outside property, was or had been in litigation between the same parties did not enlarge the court’s jurisdiction in the case in which the receiver was appointed. The outside property was entirely distinct from that involved in the action wherein the receiver was appointed, and the orders of the court relating to the former were in excess of its jurisdiction, and to that extent, at least, absolutely void. This question was directly adjudicated, first in the court of appeals, and later when the decision of that tribunal was affirmed in this court. (Branner v. Webb, 10 Kan. App. 217, 63 Pac. 274; Webb v. Branner, 65 Kan. 856, 68 Pac. 1133.) Since that determination thei’e has been no excuse for contention about the invalidity of the receivership so far as the outside property was concerned. The orders appointing and directing the receivers were incurably void, and afforded no protection to the receivers or those at whose instigation they were acting. Some of the money wx'ongfully taken from Branner through the medium of the receivership was returned to him by order of court, and becaxxse of this it is contended that Branner and his grantee cannot raise the question of invalidity, and that Hazen is precluded from recovering in this action. The money returned to Branner was his own, and at no time did he or Hazen acknowledge the authority of the receiver or acquiesce in his action. They protested persistently, and at every stage of the proceedings, that there was no jurisdiction to appoint the receiver's, and that their acts were utterly void. As the orders were nullities, they may be attacked collaterally as well as directly, at any time, by anybody, and in any proceeding where their validity is in issue. (In re Dill, Petitioner, 32 Kan. 668, 691, 5 Pac. 39, 49 Am. Rep. 505; Gille v. — 699 — Emmons, 58 id. 118, 48 Pac. 569, 62 Am. St. Rep. 609; Whitmore v. Stewart, 61 id. 254, 59 Pac. 261; Johnson v. Powers, 21 Neb. 292, 32 N. W. 62; State v. District Court, 21 Mont. 155, 53 Pac. 272, 69 Am. St. Rep. 645; The People v. Weigley, 155 Ill. 491, 40 N. E. 300; Smith v. Los Angeles etc. R’y Co., 98 Cal. 210, 33 Pac. 53; Staples v. May, 87 id. 178, 25 Pac. 346; Kreling v. Kreling, 118 id. 421, 50 Pac. 549; Port Huron & Gratiot R. W. Co. v. Judge of St. Clair Circuit, 31 Mich. 456; People v. Jones, 33 id. 303; Spoors v. Coen, 44 Ohio St. 497, 9 N. E. 132; Thurber v. Miller et al., 11 S. Dak. 124, 75 N. W. 900; Vila v. Grand Island Electric Light I. & C. Storage Co., 94 N. W. [Neb.] 136, 63 L. R. A. 791; Van Fleet’s Collateral Attack, § 16; 17 Encyc. Pl. & Pr. 752.) The orders- did not give the receivers even color of authority as to the property not in litigation, and they were therefore trespassers, and were liable for all the moneys unlawfully collected. The plaintiffs in that action, who procured their appointment and aided and cooperated with them, in wrongfully taking and appropriating the rents from the outside property, were equally liable as trespassers for the wrong done. It is contended that they should have been credited with the money disbursed, especially as much of it was used for the benefit of the owners. Trespassers are not in.a position to make such a claim. Those who wrongfully seize and hold the property of another cannot excuse themselves by showing that if was subsequently used for some good purpose, or that the use made of it was, to some extent, beneficial to the wronged party. Such trespassers cannot compulsorily constitute themselves disbursing agents of. the one whose funds or property they have wrongfully seized ; nor can they make themselves his creditors by paying — 700 — his debts without his request or consent. It cannot be said that the measure and extent of recovery adjudged by the trial court was erroneous. As tending to sustain the ruling the following cases are cited : Shaw v. Rowland, 32 Kan. 154, 4 Pac. 146; Hagar v. Haas, 66 id. 333, 71 Pac. 822; Otis v. Jones, 21 Wend. 394; Higgins v. Whitney, 24 id. 379; Kerr v. Mount, 28 N. Y. 659; Wehle v. Butler et al., 61 id. 245; Roff v. Duane, 27 Cal. 565; Olsen v. Upsahl, 69 Ill. 273; Garrigan v. Knight, 47 Iowa, 525; Hall v. Ray, 40 Vt. 576, 94 Am. Dec. 440. In his cross-petition in error Hazen complains of the rulings which denied to him the recovery of $1375.63, being the rents collected from lot No. 165. This was done upon the theory that the order appointing receivers as to that property, although erroneous, was not void. The ruling must be sustained. While the application to take possession of Branner’s half of the lot to which the opposing parties made no claim was without merit, it cannot be said that the court was wholly'without jurisdiction in making the appointment. There was' joint ownership of the lot in litigation. The possession given under the agreement was conditional upon the decision to be made in the case by the reviewing court. Aside from the- question of paying taxes, repairs might be necessary, and the parties in interest might not be able to agree with ■ respect to the necessity and extent of such repairs. Circumstances can be imagined which afford reason for a receiver in a case of joint ownership of property, the title of which was in litigation, and, hence it cannot be said that the court was without jurisdiction, nor that the orders were absolutely void. As to this lot Hazen can only recover upon the theory of a lack — 701 — of power in the court to appoint a receiver, and as that cannot be held, the trial court rightly refused him the rents. The judgment of the district court will be affirmed. All the Justices concurring.