Hottenstein v. Conrad

5 Kan. 249

• Court: Supreme Court of Kansas
• Decided: November 15, 1869
• Status: Published

Opinion

By the Court,

Valentine, J.

In this case a receiver was appointed by the judge of the district court, at chambers. Afterwards the defendant below, who is plaintiff in this court, made a motion before said judge, at chambers, to vacate said appointment and discharge the receiver. The judge overruled said motion, and this ruling the plaintiff in error claims was erroneous, and brings the question here for review.

The first question, however, for our consideration is whether the Supreme Court has any authority to review either of the aforesaid orders of the said district judge.

The said judge after malting the order appointing the receiver, undoubtedly had authority upon a proper showing to vacate the same, [Gen. Stat., 304, § 2;] and if he had done so, then we would undoubtedly have authority under the statute [jSubdivision 2, § 542, Gen. Stat., 736] to review his action, but he did not vacate said order, but continued the same in force.

Now where can any authority be found for our interference? "We know of none, and none has been pointed out to us. The orders that the said judge, at chambers, made are not final orders ; neither are they orders ■ that involve the merits of the action or any part thereof, but they are simply interlocutory orders in a provisional remedy. [Chapman v. Hammersby, 4 Wend., 173, and note and cases there cited; Willard’s Eq. Jur., 332; 2 Story Eq. Jur., § 831.] Neither did the said judge discharge, vacate or modify any provisional remedy. [See Subdiv. 2, § 542, Gen. Stat., 736.] He simply granted a provisional remedy and then continued the same in force by refusing to vacate it.

We, therefore, think we have no authority to review the said action of the judge below.

The petition in error must be dismissed.

All the justices concurring.