Reinhart Co. v. Oklahoma Gold Mining Co. ( 1924 )

ON MOTION TO STRIKE AND DISMISS APPEAL Receiver has no right to property taken in execution before his appointment. 34 Cyc. 328-9; Baldwin v. Hosmer, 25 L.R.A. 739. Attachment creditor has right to have debt satisfied, sheriff retaining property in meantime. Hunt v. Court, 35 P. 1087. Judgment lien is not affected by subsequent appointment of receiver before execution. People v. Finch, 76 P. 1120. Validity of attachment cannot be raised for first time in supreme court. Porter v. Poco, 55 Cal. 165. Point that no valid levy was made is aside from issue. 4 Cyc. 604; O'Connor v. Blake, 29 Cal. 312.

Petaluma Bank v. Court, 44 P. 181, explains and disposes of ancient case of Wisewell v. Sampson, 14 How. 52, and all respondent's arguments. Record does not show sheriff held property under attachment at time he received execution. Attempted levy was void. Rev. Laws, 5152. Omission of any necessary steps in making attachment is fatal. Drake's Attachment (5th ed.), secs. 194, 242; 111 Cal. 235.

In State ex rel. Irving Bank v. Court, 47 Nev. 83, this court refused to interfere, deciding matter should be presented to court which appointed receiver.

Possession of receiver is possession of court; attachment of property in custodia legis is contempt of court. Hall v. Stillson, 73 Fed. 527; 43 Cyc. 233-5.

Wisewall v. Sampson, 14 L. Ed. 322, firmly establishes principle and has been often approved and confirmed. Heldritter v. Oil Cloth Co., 28 L. Ed. 733.

OPINION The appeal now before us was taken from an order made after judgment. Included in the record is a bill of exceptions, to which is attached a certificate of the judge who made the order questioned, to the effect that the bill of exceptions is correct, contains the substance of all of the material evidence relating to the points involved, and that the same was prepared, filed, and served within the time allowed by law and the orders of the court. A motion has been made in this court to strike and to dismiss the appeal.

1, 2. The motion to strike goes to that portion of the certificate of the judge to the effect that the bill of exceptions was filed and served within the time allowed by law and the orders of the court. The statute provides what shall be certified to, and it does not require a certification as to the matter sought to be stricken. It adds nothing to the force of the certificate, is mere surplusage, and should have been omitted, since the bill of exceptions must stand or fall upon the facts as they appear from the record, and not upon the certificate of the judge that the law has been complied with. Whether the bill of exceptions was properly settled and allowed is purely a question for this court; but, since the matter adds nothing to the legal effect of the record, we will make no order to strike, but will at the proper time consider the record as though the matter in question were not in the certificate. 3. It is next contended that the court had no authority to make an order extending the time in which a bill of exceptions might be filed. Since there is nothing in the record tending to show that an order was made extending the time, we might proceed upon the theory that none was made, and hence that the bill of exceptions was not filed within the time provided by law, and should, therefore be stricken. This might be well enough but for the fact that, if such orders were made and the bill of exceptions was settled and allowed in time, then we should not dismiss, but permit a diminution of the record for the bringing in of those orders; hence we are driven to the necessity of disposing of the contention that the court had no authority to make an order, or orders, allowing further time for a bill of exceptions.

4. Counsel for respondents contends that the act entitled "An act to regulate proceedings on motions for new trials and on appeal in civil cases" (Stats. 1923, p. 163, c. 97), fixes 20 days within which bills of exceptions may be filed and served, and that no authority is anywhere given the court to extend the time. True it is that no authority is given the court in the statute mentioned to extend the time for filing and serving a bill of exceptions, but section 10 of chapter 142, Stats. 1915, p. 164, which covers at length the method of preparing a bill of exceptions, and which is in pari materia, expressly confers authority upon the court to extend such time; hence we think there is nothing in the point made.

5. It is also contended that counsel for respondent had no notice of the time and place when the court would hear the application of appellant for the settling and allowing of the bill of exceptions, and hence the order so doing is void. We do not agree with this view. Section 3 of the act of 1915 provides that the adverse party may object to a tendered bill of exceptions — "within five (5) days after the service of the same, by serving upon the opposite party and filing in said court a statement specifically pointing out wherein said bill does not state the true facts, or wherein the same omits any material fact necessary to explain or make clear any ruling, decision, or action of the court. Such objections shall be heard and determined by the court within five (5) days thereafter. * * * If the objections of the adverse party are disallowed, then such bill as originally filed shall be immediately settled and allowed as by this act required."

The respondent did not serve and file a statement pointing out wherein said bill of exceptions does not state the true facts, or wherein it omits any material facts. By failing to file and serve such a statement, he forfeited his right to be heard, and notice of the time and place of settling and allowing the same was not necessary.

6. A motion is also made to strike from the files the document entitled "Notice of Appeal" for the reason that it is not properly certified to. This document is not attached to and made a part of the record, nor is it certified to, nor is there any showing that it was ever served as required by law, or at all. As it stands it has no place in the files.

7. A motion is also made to strike the judgment roll on the ground that it constitutes no part of the record on appeal from the order in question. We cannot fairly determine the point urged without considering the merits of the appeal; hence this motion should be denied.

8. Respondent also moves the court to dismiss the appeal for the reason that no copy of the transcript was served upon the respondent as provided in rule 13 of this court. The court has, as far as possible, abstained from dismissing appeals for irregularities in the preparation, filing, and serving of transcripts when such irregularities could be remedied without prejudice, which we think can be done in this case.

Other grounds for dismissal of the appeal are urged upon our consideration, but, as they go to the merits of the matter involved in the appeal, we decline to consider them at this time.

It is ordered that the appellant be given 10 days within which to supplement the transcript wherein deficient, as herein pointed out, and to serve a copy thereof upon the respondent. For a failure to comply with this order the appeal will be dismissed.

ON PETITION FOR REHEARING December 18, 1924.