Summary
In Demos v. Doepker, 115 Mont. 183, 141 P.2d 372, it was held that the general provision of section 93-8011, R.C.M. 1947, (that on perfection of an appeal all further proceedings in the district court on the judgment or order appealed from are stayed) does not apply on appeal from an order appointing a receiver, the matter of stays pending appeals from orders relating to receiverships being specifically provided for by subdivision 2 of section 93-8003, R.C.M. 1947, declaring that the supreme court or a judge thereof may grant a stay therein on such conditions as may seem proper.
Summary of this case from Nelson Habeas CorpusOpinion
No. 8389.
Submitted June 28, 1943.
Decided September 20, 1943.
Receivers — Appeal from Order of Appointment — Stay of Proceedings — Statute Controlling. Appeal — Receivers — Stay of Proceedings — Statute Controlling. 1. The general provision of section 9739, Revised Codes, that on perfection of an appeal all further proceedings in the district court on the judgment or order appealed from are stayed, does not apply on appeal from an order appointing a receiver, the matter of stays pending appeals from orders relating to receiverships being specifically provided for by subdivision 2 of section 9731, declaring that the supreme court or a judge thereof may grant a stay therein on such conditions as may seem proper. Same — Actions — Appointment of Receiver Pendente Lite — Authority of District Court. 2. The district court may, under proper circumstances, appoint a receiver to preserve the property in litigation pending appeal. Same — Receivers — Appointment — Supersedeas — Statute Applicable — Undertaking for Costs on Appeal Does not Warrant Stay. 3. In an action to quiet title to mining property the district court appointed a receiver to preserve the property pendente lite, from which order plaintiff appealed. Some nine months thereafter appellant petitioned the supreme court for a stay of proceedings on the theory that under section 9739, Revised Codes, providing generally for stays on appeal, he, having furnished the $300 undertaking for costs on appeal required by section 9734, was entitled to a stay without being required to furnish a supersedeas bond. Petition denied on the ground that the general or "catch-all" provision of section 9739 is not controlling in proceedings involving the appointment of receivers, but that the matter of stays in such latter proceeding is governed by subdivision 2 of section 9731 (see par. 1), and on the further ground that the undertaking for costs of appeal would afford no protection against injury or damage to the property which might flow from a suspension of the receiver's functions pending the appeal.
Appeal from District Court, Fifth District, Madison County; Henry G. Rodgers, Judge.
Mr. Lyman H. Bennett, Jr., for Appellant, argued the cause orally.
Messrs. Frank E. Blair, M.J. Doepker and William B. Frame, for Respondents, submitted a brief; Mr. Doepker and Mr. Frame argued the cause orally.
Application for order to stay proceedings pending determination of appeal.
On June 24, 1942, the appellant commenced this suit in equity to quiet title to certain mining property situate in Madison county, Montana. Thereafter and on September 21, 1942, in said action, the district court appointed William Dunkel receiver. He immediately qualified by furnishing an approved surety bond in the sum of $5,000 and subscribing to the oath of office following which he took possession of all the properties involved. From the order of appointment an appeal was taken.
Almost nine months after the appointment of the receiver, to-wit, on June 10, 1943, the appellant filed herein a motion seeking an order of this court to stay all proceedings in the court below relating to the order appealed from, basing her motion on the provisions of section 9739, Revised Codes, a statute of general application which provides: "Whenever an appeal is perfected, as provided in the preceding sections of this chapter, it stays all further proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein * * *; but the court below may proceed upon any other matter embraced in the action, and not affected by the order appealed from. * * *"
The appeal herein is perfected pursuant to certain sections of [1-3] the codes which precede section 9739, supra. One of such preceding sections, namely, section 9731, Revised Codes, authorizes an appeal from an order appointing a receiver. It specifically provides that in such case "the supreme court, or a judge thereof, may stay all proceedings under the order appealed from, on such conditions as may seem proper." Thus is there a specific provision governing the stay of proceedings upon an appeal from an order appointing a receiver set forth in a section which precedes section 9739, Revised Codes.
Despite such particular and specific provision of section 9731, subdivision 2, Revised Codes, supra, appellant contends that under the general provisions of section 9739, Revised Codes, the giving, by her, of the $300 undertaking for costs on appeal, prescribed by section 9734, Revised Codes, entitles her, as a matter of right, to a stay of all proceedings relating to the order appointing the receiver, including a suspension of all the powers of the receiver pending a determination of the appeal and without the furnishing by appellant of any supersedeas bond.
We do not so read the statutes. Before the appellant may ground her right to a stay of proceedings upon the general provisions of section 9739 she must first show the absence "in the preceding sections" of this chapter of any provisions specifically governing her case and this she cannot do.
If appellant's case came within the specific provisions prescribed for the stay of proceedings in the cases mentioned in sections 9735, 9736, 9737, or 9738, Revised Codes, appellant certainly would not be permitted to disregard such specific provisions and to seize upon the more advantageous general provisions of section 9739. Likewise, where, as here, subdivision 2 of section 9731 prescribes the specific method of obtaining a stay of proceedings in a case where the appeal is from an order appointing a receiver the appellant may not ignore such specific provisions and insist that her case comes within the general or "catch-all" provisions of section 9739, which were intended to apply only to cases not already provided for in the code sections which precede section 9739, supra. In other words, appellant's case is specifically provided for in section 9731, and for such reasons the general provisions of section 9739, supra, do not apply. The mere giving of the $300 undertaking for costs on appeal does not effect a reversal of the action of the trial court, nor does it supersede the trial court's order appointing a receiver for the protection of the property pendente lite. This court long ago recognized the right of a trial court, under proper circumstances, to appoint a receiver to preserve the property in litigation pending appeal ( State ex rel. Boston Montana Consolidated C. S. Mining Co. v. Second Judicial District Court, 22 Mont. 241, 56 P. 281) and we are not now prepared to nullify such decision by holding that the protection so afforded may be destroyed by the simple device of appealing from the order of appointment and filing a $300 undertaking for costs on appeal. As before stated, the receiver has filed, in this case, an approved bond in the amount of $5,000 and he operates under the direction of the court. If the receiver's bond be deemed inadequate, on proper application and showing, it may be increased. Thus are the interested parties protected. What would become of such protection, however, if the mere giving by appellant of an undertaking on appeal in the paltry sum of $300 were to effect a suspension of the receiver's functions and a delivery of the property to appellant? Respondents have as much need for adequate protection pendente lite as has the appellant. The $300 bond for costs on appeal prescribed by section 9734, Revised Codes, affords no protection in the event the property is injured, disposed of or destroyed pending appeal. The motion for stay is denied.
ASSOCIATE JUSTICES ANDERSON, MORRIS and ERICKSON concur.
MR. CHIEF JUSTICE JOHNSON, deeming himself disqualified, takes no part in the above decision.