Doggett v. Johnson , 79 Mont. 499 ( 1927 )

I agree with all that is said in the foregoing opinion except that which gives approval to the order directing the receiver to turn over the sum of $1,826.39 to the defendants. I concede there is authority for this order; probably no direct authority can be found to the contrary. But it seems apparent that a manifest injustice may thus be done to the plaintiffs. It is true that they set in motion the proceedings which caused the court wrongfully to appoint the receiver who took possession of the premises without legal authority (under a void order). It is argued, and with force, that therefore plaintiffs should not be heard to complain over what they brought to pass. It is true that the receiver had no right to hold possession of the premises and has no right to the usufruct thereof, but should any part of the usufruct be paid to the defendants? They were entitled to the possession of the land as against the receiver, but were they as against the plaintiffs? It may be that the plaintiffs, when the action was begun, were entitled to the possession of the premises, which the defendants were detaining unlawfully. If the plaintiffs were entitled to the possession of the premises and the defendants were not, the defendants are not entitled to the usufruct of the land or any part thereof.

It may be, as the court recited in the order appointing the receiver, that the defendants were not financially able to conduct farming operations upon the premises for the season of 1924, had no farm implements, machinery, horses or tools for the production of a crop, and could not and would not have cropped or worked the premises for the season of 1924 if left in possession thereof. If the facts are as the court found them to be, it is difficult to see how the defendants are entitled to the money in question.

In Northwestern Fuel Co. v. Brock, supra, the court held that the lower court had the authority to correct that which it had no authority to do in the first instance and to do so in a summary proceeding, "upon the motion of the parties, the only requisite being that the opposite party shall be heard, so that in directing the restitution no further wrong be committed." If, in the situation presented, but one order lawfully can be made, why give the opposite party opportunity to be heard? Hearing him would be mere lost motion.

It seems to me that a proper order, so that no further wrong be committed, would be to restore the possession of the premises to the defendants, and to order the money into the possession of the clerk of the court to await the final disposition of the action. Thus the plaintiffs would not gain anything by their wrong, for if they do not prevail in the action they will not be entitled to the money. If the defendants were not entitled to the possession of the premises when the action was commenced, they will not be entitled to the money. Suppose the money is paid to the defendants, who, let us suppose, are insolvent, and it is found that the defendants were not entitled to it, of what avail will be a judgment declaring the plaintiffs entitled to the money? It is said that if this action be taken, the court will be impounding the very money which it has determined the receiver, as agent of the court, could not impound. But this must be upon the assumption that the defendants were entitled to the possession of the premises as against the plaintiffs as well as against the receiver. If the defendants were not entitled to the premises as against the plaintiffs, they are not entitled to the money. So it seems to me that more equal justice would be administered if the moneys were impounded to await the result of the action, when those justly entitled to the money will receive it.

Rehearing denied July 7, 1927.