ON PETITION FOR REHEARING A petition for rehearing has been filed herein. The first ground urged is that the judgment of May 14, 1928, was void because the trial court was then without jurisdiction in the case by reason of the fact that an appeal was then pending in this court from an order appointing a receiver. Grieve v. Huber,38 Wyo. 223, 266 P. 128. The claim now urged was not mentioned on the original hearing herein, and we might well disregard it for that reason. But, anxious not to do injustice, we have fully considered the point. The law does not seem to sustain the appellant's claim. It is generally held, though there may be exceptions, that an appeal from an interlocutory order does not divest the trial court of jurisdiction to *Page 186 proceed in matters not involved in the appeal. 3 C.J. 1259. And in 3 C.J. 1326 it is said:
"Notwithstanding a supersedeas on appeal from an order appointing a receiver, the cause remains pending in the trial court, and amendments and changes in the pleadings may be made as in other cases; and the parties are not deprived of the right to a trial of the cause on the merits pending the appeal."
See also cases cited in note (e) of 3 C.J. 1260. In the case of Wabash R.R. Co. v. Dykeman, 133 Ind. 56, 32 N.E. 823, the court said.
"After a receiver has been appointed, the order making the appointment appealed from, the cause, notwithstanding the appeal, remains pending in the nisi prius court, and amendments or changes in the pleadings may be made as in other cases * * *. On such appeal no question will be considered as to the sufficiency of the complaint or other pleading in the action, except that which immediately led to the appointment of the receiver, leaving all other matters open and undetermined and still within the control of the court below."
Furthermore, a consideration of Section 6413 would seem to completely dispose of the matter. That section provides:
"No appeal taken from an order made before judgment shall stay further proceedings in the action in the trial court, unless by order of the judge thereof."
It is not claimed that any order was made staying further proceedings. If, accordingly, the statute quoted is not applicable, it is only because a judgment that was binding upon the appellant had already been entered in the cause. One party cannot, of course, rely upon the existence of a judgment that in no way concerns him or binds him. A judgment had been rendered against other *Page 187 parties on August 17, 1926. If that was binding upon appellant, as many courts would hold, as shown in the original opinion, then the judgment of May 14, 1928, becomes wholly immaterial herein. If it was not binding upon it, then it cannot be relied on herein to prevent the application of Section 6413 supra; for then so far as appellant is concerned, the first judgment rendered in the case was that of May 14, 1928, making the provision of the foregoing statute directly applicable, and left the trial court full power to proceed in the case as it did, notwithstanding the appeal from the order appointing a receiver. Congress has enacted a provision similar to that of our statute. Section 129 of the Judicial Code (28 U.S.C.A., Sec. 227) provides that appeals may be taken from interlocutory orders, including orders appointing a receiver, but that "the proceedings in other respects in the District Court shall not be stayed during the pendency of such appeal, unless otherwise ordered by the court." It has been held that such appeal affects nothing except the order appealed from. Cuyler v. R. Co., 132 Fed. 568; Foote v. Non-Skid Co., 196 Fed. 951; Sutherland Paper Co. v. Carton Co., 14 F.2d 700; Exparte National Enameling Co., 201 U.S. 156, 50 L. Ed. 707,26 Sup. Ct. 156. In the last case cited, it was said:
"Obviously that which is contemplated is a review of the interlocutory order, and of that only. It was not intended that the cause as a whole should be transferred to the appellate court prior to the final decree. The case, except for the hearing on the appeal from the interlocutory order, is to proceed in the lower court as though no such appeal had been taken, unless otherwise specially ordered."
Counsel argues that one of the grounds alleged against the validity of the order appointing a receiver was the want of jurisdiction over the person of the appellant; that this objection applied to the whole case, and consequently *Page 188 was directly involved in the former appeal and necessarily deprived the court of power to proceed further until that point was determined by this court. But our statute does not say so. The grounds urged against the validity of the appointment of a receiver were not appealable; only the order itself was, and from it only the appeal was actually taken. If the contention of counsel were correct, the purpose of the statute could easily be defeated in any case by merely alleging want of jurisdiction of the court to proceed. It may, of course, happen at times that the ground alleged against the invalidity of the order appointing a receiver will, if found to be well taken, also render any other order in the case invalid. And the statute has made specific provision for a case in which the trial court should deem that to be true, for a special order may be then entered, suspending any further proceedings. But unless such special order is made — and none was made in this case, so far as the record shows — the court is not deprived of jurisdiction to proceed in other matters, if, as is true here, the ground urged is not in fact well taken.
Counsel except to the presumption which we indulged in on the original hearing that the sale of the premises in question was regularly conducted, and now, for the first time, claims that to be untrue. We find his claim as to the issuance of the order of sale and the appraisement to be without merit. The record, however, fails to show a return made by the sheriff, or a copy of the advertisement. But there is no affirmative showing that the sale was not regularly conducted, and in the absence thereof we must presume that the officers performed their duty, and that when the court entered its order confirming the sale, it found, upon evidence duly submitted, that everything necessary to be done in order to make the sale valid was in fact done. This is elementary. Besides, there is no *Page 189 certificate in the record showing that it contains all the papers filed in the case. Other arguments relate to the defects in the judgment of May 14, 1928. But we discussed that matter fully in the original opinion, and think the conclusions therein stated to be correct. The petition for rehearing must be denied.
Rehearing Denied.
KIMBALL and RINER, JJ., concur.