First National Bank of Pocatello v. C. Bunting & Co. ( 1900 )

Per CURIAM.

We have considered the petition for a rehearing filed herein, and have examined all of the authorities cited therein. We do not think the authorities cited sustain the claim of petitioner. Petitioner cites as follows from 17 Encyclopedia of Pleading and Practice, page 885: “Where a receiver .... contests a suit with leave of court, he is entitled to appeal from a judgment adverse to the interests which he represents”; and refers to the following cases cited as supporting such statement: Becker v. Hoke, 80 Fed. 973, 26 C. C. A. 282; Shields v. Coleman, 157 U. S. 168, 15 Sup. Ct. Rep. 570, 39 L. ed. 660; Arnold v. Weimer, 40 Neb. 216, 58 N. W. 709. The text in 17 Encyclopedia of Pleading and Practice, page 885, is as follows: “Where a receiver has intervened, and contests the suit with leave of court, he is entitled to appeal from a judgment adverse to the interests which he represents.” In the case of Becker v. Hoke, the receiver intervened, and an appeal was allowed by the court. In Shields v. Coleman, 157 U. S. 168, 15 Sup. Ct. Rep. 570, 39 L. ed. 660, the single question involved was the jurisdiction of the federal court to appoint a receiver, and take the railroad property out of the possession of the receiver appointed by the state court — a contest between receivers. An appeal was allowed by the circuit court. In Arnold v. Weimer, the receiver intervened to procure the dissolution of an attachment against the property of the corporation of which he had been appointed receiver. An examination of these authorities will show that they have no applicability to the case under consideration. Petitioner cites High on Receivers, second edition, section 264. In the opinion in this case the court cites the same section from High on Receivers, third edition, which is adverse to the contention of petitioner. In each of the answers filed by the appellant,, as receiver, to the respective petitions of the respondents, it is alleged that such answer is filed by leave of the court. .But nowhere in the record does it appear that the district court authorized the receiver to bring these appeals to this court. Inasmuch as the vital questions of law raised by the respective petitions of the respondents in this case had been determined by the appeal taken by the state in this case (see State v. Thum, 6 Idaho, 323, 55 Pac. 858), and there were no questions of fact in dispute, an order if it had been made, by the district court, permitting these appeals by the receiver, would have been erroneous. We are unable to find in the case made by the petition, or in the authorities cited therein, any warrant for granting a rehearing, and the same is denied.