| Show AN APPEAL DENIED from the appointment of a receiver in the church case today the territorial supreme court rendered a decision on the application for an appeal 1 to be a lowed to the united states supreme court from the action of the territorial court to in appointing point ioe a receiver for forthe the property of the baurch of jesus christ of lauer latter day saints the opinion which was given by judge henderson is as follows lows UTAH TERRITORY SUPREME COURT united states of america plaintiff vs the late corporation of the church of jesus christ of latter day saints et al defendants the defendant corporation makes application for an appeal to the supreme reme court of the united states under kr see sec of the revised statutes of the united states from the order here tolore made herein appointing a receiver the complaint prayed that a receiver be appointed by the court to take charge of toe the property during the of the suit and and a motion was made for the appointment of a receiver as prayed in the complaint the motion was heard beard upon an agreed statement of facts it be being a part of the stipulation tb that a t the inflects facts therein n stipulated should be ba used upon the hearing bearing of the motion and for fe r no other purpose whatever at the time the motion was heard beard the defendants had bad filed a general demurrer to the complaint tor for want of equity the motion was heard and granted by tills this court november ath last the of the court being read by the chief justice and reported in pacific reporter this opinion 0 recites recite g fully the complaint and the law under unde r which it is filed pursuant to that opinion an order was entered appointing a receiver as prayed in a the complaint since that mire hire the demurrer has teea bets submitted and an order entered over ruling iland it and the defendants have answered controvert ing the averments aver ments of the complaint and averring the unconstitutionality constitution alicy of the law under which i it is brought A commissioner has bas been appointed to take testimony this is the situation of the we case when this application is made the statute before referred tet rel erred to under which this application to Is made provides that an appeal shall be allowed to the supreme court from all final decrees it ills to contended by counsel for the defendant corporation tuat that the order appointing a receiver is a final decree within the meaning of this statute while counsel lor for the government contend that the order is not final but is interlocutory and therefore not pea Ra lable and this esthe only question before us the right to appeal is purely statutory and therefore depends entirely upon the construction of toe particular statute upon which an appeal to is claimed we bave been referred by counsel tor for defendant to a arge rge number of cases the various var ions states construing construing con various stat statutes utes thereof from which the general role nay may be deduced that under statutes allowing an appeal from final orders and decrees in determining whether an order or decree deerie is final and the court will look at the substance and effect rather thi than luoto to the form or the time when it is made and in applying this general rule to orders appointing rece hers if it is found that the order finally adjudicates and disposes of the subject matter of the litigation so far as it can be done in the action or any part of it then it is but it if the complaint brings into court a subject matter auxiliary to which the court is or may be charged with the care distribution disposition or application of a fund or property and the court makes a preliminary order appointing a receiver to ie hold the property for it awaiting final determination 0 the principal question it is not dot final and the rule has been applied with maryf ng results according to the facts under consider consideration aion thus in MI michigan e higan where the rule as above stated state d nas has been repeatedly declared kingsbury vs kingsbury 20 mich duncan vs campau 15 mich wing vs warner 2 doug mich in applying this rule in lewis vs campau 14 mich it was held field by a divided court atiat the order appointing a receiver was final and under the peculiar facts of viat case it appeared that the complainant had bad made application to the probate court to have an administrator removed for misconduct in the management of his trust that the administrator was delaying n the e hearing and pending these aroc proceedings aged ia g s the complainant complain aut filed his bis bill ill praying pray g as principal relief that a receiver might be appointed to take charge of the trust estate estale during durin th abe e of the proceedings upon gpo n tiling filing the bill the court appointed a receiver the majority of the court held that mat it was final within the rule because it granted all mat the complaisant complainant nant asked as principal relief and was a final disposition so far as liae coart could make it under the bill and in barry Ys vs briggs 22 2 2 mich the court bold the order appointing a receiver because it took from a sole surviving partner the entire assets of the partnership co and authorized the rec receiver eivor to proceed to sell a all 11 the property and convert it into cash and directing and commanding the defendant to transfer the legal title to the receiver thereby divesting the surviving partner of it forever enese cases were much relied upon by counsel for defendant upon this argument in the supreme court of the united states the statute under consideration has been repeatedly construed ana substantially the same iame general rule rufe has been declared mining minine railroad co vs express co U US 8 24 forgay vs conrad 6 howard trustees vs greenough U S dainese vs kendall U as 53 in the case last cited chief justice waite in deci deciding dink the case gives a general definition of a final decree as follows A decree to be float for the purposes of an appeal must leave the case in such a condition that it if there be an ill 19 this court the court below will have nothing to do butto but to execute the decree it has already made in forgay vs colrud Jon rad supra the court says and a decree decides the rights to tile the property in contest and directs it to 10 be delivered by the defendant to the complainant nant and complainant nant is entitled to have such decree carried immediately into execution the decree must be regarded as a floal final one to that authorizes an appeal to this coult although so much of the bill is betit retained ned to iu the circuit court as is a cessare for the purpose of adjusting by further decree the accounts between the parties pursuant to the decree passed this rule of course does not apply to cases where money is directed to be paid into court or property to be delivered to a receiver or property held in to oe delivered to a new trustee appointed by tile court or to cases of the like description orders of that kind are frequently and necessarily 8 made in the progress ot of a case but they are interlocutory otly intended to preserve the subject matter in dispute from waste and dilapidation and to keep it within the control of the court until the rights of the parties are adjudicated by noal fical decree while in trustees vs greenough Greeno supra toe tae court held that an order directing tain amounts to be paid out tu to the trust fund is because to the extent of such payments the property was finally disposed of in the ease cake at bar the statute under which the complaint as is brought declares the disso dissolution latin of the defendant delen dant corporation and authorizes proceedings ings in equity in this court to win wind d up its aff affairs airs and distribute its property and make assignments sign ments thereof the complaint avers this dissolution and the right of the government to intervene and wind up its affairs and distribute its property this dissolution and right to administer the defendant dehler and did deny by its demurrer pending at the time this order was made and still denies denied by its answer this then is the principal contention and subject matter in controversy taking charge chare cha re of the property by the court pending th the e settlement of this controversy la is merely auxiliary to the principal baes tion and that it may be held by the court and delivered to whoever shall be entitled to it when the is determined the order does not pretend or purport to dispose of any part of the property or interfere with wita the title to it or put alt it beyond the control or er reach of the court or parties but simply to hold it for them ard 3rd pow pom eq jur see sec 1886 it is insisted that the act under which the complaint is brought de clares clarea the dissolution of the corporation and that the distribution 0 of f tile the property follows as a necessary consequence so that the validity of the act is the only real question involved and that in passing upon the motion the court decided this question and that it is therefore final the counsel refer to the opinion of the court in support t of this view one ground and indeed the principal one urged against the appointment ot a ru receiver celver was the unconstitutionality of the law and in passing upon the motion this court necessarily considered it and gave expression to its opinion as a reason for making the order but it was only passed upon for the purposes of the motion neither the opinion nor t the he m order made u upon on it constitutes the decree or final arder order when the cause is brought to hearing bearing upon being perfected for that purpose if 11 the aspect of the cause his has not changed the opinion before expressed if not changed on future deliberation would pass into a decree and be the he subject of appeal but court would not be concluded ay by the opinion before expressed example the supreme court of the united states fore this case is finally heard beard make a decision in some other case pending before it which in our minds was conclusive in favor of df defendant then the decree would be entered herein accordingly it happens that on some preliminary motion the court is called upon to express an opinion more or less strong n relation to the merits of the controversy but the order made thereon is not for that reason a final order rivon wang ing vs warner aad 2nd doug mich on the bearing of afie motion for a receiver it 11 was argued on both sides by eminent and able counsel and the arguments proceeded upon the theory that the order asked for was interlock tory tary indeed it was one of the rounds grounds strongly onely str urged by counsel for defendant lefenda defendant nt against the grant granting lug of the order col broadhead in his bis argument as published in stating the question presented said whet whether her a court of equity or a court of law under the provisions of a statute authorizing it to take possession of the property of a defendant to take it out of hid custody before there is any deter mi nation odthe of the rights involved in the litigation between the parties is in the language of the books an nary dory remedy that the defendants have been guilty of some fraudulent acts which justify the interference of a court of ch chancery in reaching out the strong arm ot of the law jaw and taking possession of the property before there is any determination of the rights in cont contro rov vr ersy between the parties and the chief justice in deciding the motion said in deciding this motion we are t re not called upon to finally finall determine ille the rights of the parties with respect to the proper property tv involved in the case such rights will be decided as they ultimately ti appear we cite these opinions as showing that it was the judgment of counsel and court at that time that the order asked for was interlocutory and not final we should be glad if the case was in condition to give five it to the supreme curt court to determine ithe important ques eions ievoli involved med but we feel constrained to hold that the order is not the motion Is denied zane C J concurs Be boreman Bore remail mao justice concurs upon the rendering by the court of his bis decision mr rawlins asked that a date be set for the trial of the suit cult of t the he united states against the church corporation and also the suit against the P E fund company as only questions of testimony being necessary only where other defendants fend ants were interested mr peters opposed the request and wanted the hearing bearing of the case postponed indefinitely the matter was f urther further argued by the attorneys and the court set tuesday next at 10 am for still further argument |
