Little v. Little

MR. JUSTICE ANQ-STMAN,

(dissenting).

In addition to the facts set forth in the majority opinion it should be noted that the complaint contained a second cause of action seeking possession of certain described personal property other than the trailer in question. The Washington decree entered on September 2, 1949, dealt with a second trailer. It adjudicated rights in favor of, as well as obligations against, defendant Walter L. Little. It required plaintiff to relinquish possession of a certain Covered Wagon house trailer belonging to defendant Walter L. Little. It required him to return to plaintiff the items of personal property which she described in her second cause of action and which she alleged had not been returned to her. Defendant Walter L. Little recognizes the Washington decree only so far as it is favorable to him.

The decree provided that the alternative judgment of $1,000 “shall be a specific lien on all property of the defendant within the state of Washington.”

On December 22, 1949, the Washington court after hearing entered another order which the majority opinion labels an “implementing directive.” That order commanded defendant Walter L. Little to deliver the trailer in question here to Warren E. Dunning at Richland, Washington for the purpose of sale through the agency of Warren E. Dunning. It further provided:

“That said Warren E. Dunning shall have possession of said House Trailer for the purpose of sale for and on behalf of the plaintiff, Winnifred A. Little and the defendant, Walter L. Little, with the right and privilege to place the same upon his *287lot near 4410 Columbia Avenue, west of Kennewick, Washington; that such sale shall be conducted by Warren E. Dunning for less than $2,500.00 net, after deduction of all costs of sale.
“That return of the sale shall be made to this Court when made and the monies paid into the registery of this Court for distribution as ordered by the Court.”

If that order be properly characterized as an “implementing directive” it is still a directive wholly inconsistent with the idea that plaintiff must now be relegated to a money judgment for $1,000 in lieu of her one-half interest in the trailer.

I think the order of December 22 in effect modified the decree of September 2 because of irreconcilable conflict between the two. Under the order of December 22 defendant was obligated not to pay $1,000, but to surrender the trailer to Mr. Dunning for sale.

When the motion to dissolve the order appointing the receiver was heard by Judge King the answer of defendant L. E. Little on file showed that not only the trailer in question here but also the Covered Wagon house trailer on which plaintiff had a lien were then in Lincoln county, Montana, and both included in a mortgage executed by defendant Walter L. Little to his father L. E. Little.

Did the court err in appointing a receiver ? I think not.

R. C. M. 1947, sec. 93-4401, authorizes the appointment of a receiver: “1. In an action * * between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of any party whose right to or interest in the property or fund, or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured”.

The court recited in the order of appointment that there is immediate danger that the property in question will be removed beyond the jurisdiction of this court. The allegations of the complaint warranted this finding. The court was fully warranted under the showing made in the complaint to appoint a receiver pendente lite under section 93-4401.

*288I do not believe it can ,be said that under the order of the Washington court as modified on December 22 plaintiff must accept a money judgment in lieu of her one-half interest in the trailer. I doubt whether it would be competent for the court to summarily dispose of plaintiff’s interest in community property in this fashion except of course that it could do so by giving plaintiff the option to accept the alternative judgment. But if plaintiff be for any reason compelled to accept the $1,000 alternative judgment, still under the circumstances here presented it was proper to appoint a receiver. The decree provides that should defendant fail to return the trailer house, “that the plaintiff be awarded $1,000.00 by way of alimony in lieu of all other payments for her community interest in the community property. ’ ’ The decree it should be noted was specific in characterizing the $1,000 as alimony.

R. C. M. 1947, sec. 21-140, provides: “The court or judge may require the husband to give reasonable security for providing maintenance or making any payments required under the provisions of this chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applicable to the case.”

This proceeding is merely one in aid of the matrimonial action tried in Washington and in such actions it is proper for the court in its discretion to appoint a receiver to take possession ,of property necessary to the protection of plaintiff’s rights. 45 Am. Jur., Receivers, sec. 43, p. 40, sec. 150, p. 124; Nichols v. Superior Court, 1 Cal. (2d) 589, 36 Pac. (2d) 380, 95 A. L. R. 894.

While there are authorities to the contrary, the better reasoned cases, as well as the decided weight of authorities, hold that the courts will enforce the judgment of a sister state awarding alimony by the same equitable remedies that it would apply to the enforcement of a domestic decree. Fanchier v. Gammill, 148 Miss. 723, 114 So. 813; Creager v. Superior Court, 126 Cal. App. 280, 14 Pac. (2d) 552; Bruton v. Tearle, 7 Cal. (2d) 48, 59 Pac. (2d) 953, 106 A. L. R. 580; Ostrander v. Ostrander, 190 Minn. *289547, 252 N. W. 449; German v. German, 122 Conn. 155, 188 A. 429; Cousineau v. Cousineau, 155 Or. 184, 63 Pac. (2d) 897, 109 A. L. R. 643; Shibley v. Shibley, 181 Wash. 166, 42 Pac. (2d) 446, 447, 97 A. L. R. 1191.

In the last cited case the Supreme Court of Washington had before it a California decree and said: ‘ ‘ Plaintiff is entitled to recover in this case for the amount already accrued and due according to the allegations of her complaint, the judgment to provide for its enforcement as a judgment or decree in equity. We adopt this procedure, not on account of the rule of comity enjoined by the full faith and credit clause of the Federal Constitution, but because, as a matter of public concern and equitable power, the enforcement in this state of such decrees for alimony and support money should not depend solely upon ordinary execution, but that the common practice in this state with respect to all the remedies for the enforcement of such decrees as if originally entered here should be followed and enforced.”

In the Ostrander Case, supra, the court had before it a South Dakota decree awarding alimony. In reciting the purpose of the action in Minnesota the court said: “The purpose of this action is, not to recover that amount as a debt by ordinary judgment and execution, but to compel its payment through whatever power our ‘ courts may have, on the equity side, to resort to sequestration, receivership, or even contempt proceedings, against defendant.” The court in holding that the Minnesota courts could enforce the judgment the same as if originally entered in Minnesota said:

■ “Because of the nature of defendant’s obligation and its origin, the enforcement of his duty is as much in need of attention by sovereign power as though he had remained in South Dakota. Transplantation of the parties from one state to another has not reduced the obligation to the ordinary category of ‘a debt of record.’ Contra, [3] Freeman on Judgments [5th Ed.], sec. 1447. Migration of the parties across a state line has wrought no change in the nature and basis of the obligation. Its purpose remains the payment of alimony needed for the *290support of a former wife and the child of herself and her debtor. To the ordinary mind, untroubled by legal nuances, the money due from defendant remains alimony wherever they or either may be. We prefer that nontechnical view which regards the substance of the matter as unchanged by mere removal of the debtor across a state line.
“* * * But we decline debate as to how little we can do for plaintiff and yet comply with the full faith and credit mandate. In view of her plain right, and the need for its enforcement, not only in justice to her and her child, but also to vindicate our system of interstate comity, we prefer only to inquire whether our district court has adequate power to give plaintiff the remedy which the nature of her claim commends as just.
“The decree ordered below is distinctly one ordering the payment of alimony to a divorced wife. It is just as much a need here of society and justice that such alimony be paid, as it was in South Dakota, when the original decree was entered. Defendant’s duty to plaintiff was fixed originally by the South Dakota decree. In neither ethical nor legal quality would his obligation be otherwise had it been imposed by a Minnesota judgment. The only difference is that such a judgment would be directly enforceable against him without the preliminary process of another for its enforcement. The present action is of the latter nature. Its purpose is to get a local judgment, not strictly for the enforcement here of the South Dakota judgment, but that, because of that decree, the duty shall be binding upon defendant here as well as in South Dakota. The mandate enforced locally will be that of our own court. Only in that secondary sense does the court of one state, by, its own process, enforce the judgment of another state.
“Now that plaintiff, her child, and defendants are residents of Minnesota, they are all within reach of the policy of this state as evidenced by its statutes. No reason occurs to sound sense (nor to ‘ sound public policy, ’ Holton v. Holton, 153 Minn. 346 [351], 190 N. W. 542, 41 A. L. R. 1415), why defendant *291should not be compelled to pay just as he would be had the obligation been first imposed by a Minnesota court.”

I agree with what was said in the Cousineau Case, supra [155 Or. 184, 63 Pac. (2d) 904], where the Supreme Court of Oregon said: “The defendant’s duty was not diminished in any manner when he chose to come to our state, and, since both Washington and California are prepared to enforce the decrees of this state in exactly the same manner as we would do ourselves, we ought not to make our state a safe haven for those who seek to evade duties imposed upon themAby the decrees of our neighboring states unless there is no escape from such an unhappy task. ’ ’

I think Judge King did not abuse his discretion in appointing a receiver to take possession of the property and hold it until' the action is tried.

If costs are being incurred, as defendants contend, which plaintiff expects them to pay, they could all have been avoided by defendants exercising the privilege offered in the complaint of placing a bond in the sum of $1,500 in lieu of the trailer house.

Neither do I see any objection to appointing the sheriff as receiver where as here the only duties to be performed were those of holding the property. The only statute dealing with those who may or may not be appointed a receiver is section 93-4404 which in part provides: “No party, or attorney, or person interested in an action can be appointed receiver therein without the written consent of the parties”.

It has been held under a similar statute that a sheriff is not an interested party and that he may be appointed. Crawford v. Crawford, Tex. Civ. App., 163 S. W. 115. When appointed, he acts and has the same authority as any other receiver. Teats v. Bank of Herington, 58 Kan. 721, 51 Pac. 219.

Thus far I have considered the ease as if the appeal were properly before us.

It is my opinion that plaintiff’s motion to dismiss the appeal should be sustained. The motion to dismiss the appeal presents the question whether defendants may sit supinely by and allow the time to expire within which to appeal from an order ap*292pointing a receiver and then long after that time has expired file a motion to vacate the order appointing the receiver on grounds existing when the order was made and by this method extend the time for a review of those questions.

The facts out of which this question arose are these.

The order appointing the receiver was made on June 26, 1950. It was entered in the minutes of the court on June 26. The order was served upon defendant Walter L. Little ón June 26. The receiver took possession of the trailer on June 26. The next three or four months were used in disposing of demurrers and motions directed against the complaint and amended complaint. On November 13, 1950, each of the defendants filed a separate answer. Nothing was done with respect to the order appointing a receiver until November 21. On that day defendants filed a motion to dissolve and vacate the order appointing the receiver on several grounds. All of the grounds of the motion save one existed when the order appointing the receiver was made.

The one ground not existing when the order was made was that the purported receiver has “failed to qualify, account to the Court or otherwise act as an officer of the court so appointed.” This ground was eliminated from consideration by the act of the receiver in filing his oath and a return showing that he had taken possession of the property in question. On January 25, 1951, the motion was denied. Notice of appeal was filed on March 12, 1951. Plaintiff has filed a motion to dismiss the appeal as coming too late.

R. C. M. 1947, sec. 93-8003, authorizes an appeal from an “order appointing or refusing to appoint a receiver, or giving directions with respect to a receivership, or refusing to vacate an order appointing or affecting a receiver”.

By R. C. M. 1947, sec. 93-8004, an appeal from such an order must be made “within sixty days after the order * * # is made and entered in the minutes of the court filed with the clerk. ’ ’

Here, as above noted, the order appointing the receiver was made on June 26, 1950, and the order was entered in the minutes of the court on that day. That was sufficient to start the run*293ning of the sixty-day period under section 93-8004. Tbe filing of the order on December 8, 1950, did not extend tbe time within wbicb to appeal from tbe order of June 26 appointing a receiver. In re McCracken’s Estate, 87 Mont. 342, 287 Pac. 941; State ex rel. State Highway Comm. v. Speidel, 87 Mont. 221, 286 Pac. 413. But if it did, tbe time to bave appealed therefrom would then bave expired on February 8, 1951, and this appeal was not taken until March 12, 1951.

Tbe motion to vacate was filed in November 1950. May defendants question tbe appointment on grounds existing when tbe appointment was made after tbe sixty-day period, by filing a motion to vacate after tbe sixty-day period and then appeal from tbe order refusing to vacate!

In Forrester v. Boston & M. Co., 22 Mont. 430, 56 Pac. 868, this court answered tbe question in tbe affirmative. But in that case tbe law furnished no appeal from tbe order appointing tbe receiver. There tbe order appointing tbe receiver was entered on December 15, 1898. At that time tbe law did not provide for an appeal. In February 1899 a motion was made to vacate tbe order. On February 28, 1899, tbe law was amended to read as it now is. The court in that case held it was proper on tbe appeal from tbe order refusing to dissolve and vacate tbe order to consider matters wbicb were before tbe district court when it made tbe order appointing tbe receiver. It did so however by stressing the circumstance that in that case there was no appeal from tbe order appointing tbe receiver.

In tbe later case of Forrester v. Boston & M. Co., 24 Mont. 148, 60 Pac. 1088, 1089, 61 Pac. 309, in speaking on tbe same subject tbe court said: “Tbe statute should be understood also as creating tbe right to appeal from an order refusing to vacate the order of appointment where tbe motion to vacate is based, not upon tbe conditions existing when tbe order was made, but upon facts occurring subsequently to tbe making of tbe original order * #

Defendants contend that when tbe two opinions are read and considered together, and since tbe word “also” is used in tbe *294quotation made from the last opinion, what the court intended was to allow a review of matters which were before the district court when it made the order appointing the receiver and also matters subsequently arising. Assuming that such is the proper interpretation of those opinions, they do not reach the point before us where as here the statute provided for an appeal from the order appointing the receiver.

It is my opinion that in order to review matters existing when the order appointing the receiver was made, an appeal must be taken from that order within the statutory sixty days. A party may not allow the time to appeal to pass and then file a motion to vacate on grounds existing when the order was made and upon an adverse ruling appeal from the order refusing to vacate, and thus extend the time for review of those matters beyond the time provided for by statute.

I recognize the rule that an order made without jurisdiction is void and may be questioned at any time.

The first ground of defendants’ motion was: “That such appointment is void and unauthorized by law.” That is but a conclusion of law. Furthermore it does not question the jurisdiction of the court. Certainly the court had jurisdiction of the subject matter and of the parties when the complaint asking the appointment of a receiver was filed.

If the order appointing the receiver be subject to the infirmities relied on in the majority opinion, they do not add up to a want of jurisdiction but simply constitute error within jurisdiction. I think the time to appeal from such matters on grounds existing when the order was made expired on August 26, 1950, which was sixty days from the time the minute entry was filed with the clerk. But if the time to appeal starts from-the time the order itself was filed, then the time to appeal expired on February 8 and this appeal was not filed until March 12.