McKinnon v. Wolfenden

Lyon, J. The respondents move to dismiss the appeal. The motion must be granted. Wolfend&ris appeal as re [239] ceiver was not authorized by the court. Without such authority it was not competent for him to take the appeal. A receiver is the mere servant or agent of the court to do its bidding, and he cannot be heard to question by appeal the regularity or propriety of the orders of court in the action, unless the court first authorizes him to do so. Wolfenden also appeals in his capacity as a creditor of the insolvent corporation. Treating him as a party to the action when the order of confirmation was made (although he was not then a party, but only the assignee of a party), we think he is in no position to appeal from the order of July 19, 1887. The order of December 17,1887, was made at his request. It gave him and other creditors the right to redeem the property, the amount required for such redemption having been determined by the order of July 19th, and it secured the right of subrogation and the appointment of a receiver. Thus Wolfenden and his co-petitioners obtained the full benefit of the order made at their request. It is now too late for him to go back of the order of December 17th, thus made for his benefit and at his request, and attack the order of July 19th, upon which it was based. The case is not, as counsel for appellants contend, like one in which a plaintiff pays a judgment against him and then appeals therefrom, as he lawfully may, but is rather like a case in which a party voluntarily takes the benefit of the provisions of an order in his favor, and then appeals from that portion of it which imposes obligations upon him. This he may not do. Flanders v. Merrimac, 44 Wis. 621, and cases cited in the opinion. As before observed, the order of December 17th is based upon that of July 19th, and manifestly would not have been made, or at least executed, until the amount of the Oases' interest in the mortgaged assets of the corporation had been ascertained. So the two orders are, in some sense, m gcvri materia, and [240] a party cannot be permitted to take all the benefits he sought and obtained in one of them, and then overthrow the other by appeal. As to the appellants Niesohultz and Lee, they did not become parties to the action until more than six months after the order appealed from was made. This delay was their own fault. The action was brought several years ago in behalf of all the creditors of the insolvent corporation, and they might have become parties thereto had they so desired at any time thereafter. It would be most unjust to the other parties in the action, particularly to the Oases, to permit these appellants now to strike back and appeal from any appealable order they find in the record, with which they are dissatisfied. We think, and so hold, that at best they cannot be in any better position than one who was a party to the action when the order of July 19th was made, having due notice of the order at the time it was entered. The right of such a party to appeal therefrom terminated in thirty days after such notice. R. S. sec. 3042. Whether they can appeal from an order made before they became parties to the action is not here determined. By the Oowrt.— The appeal is dismissed.