Scandinavian-American Bank v. WentWorth Lumber Co.

Oregon Supreme Court

Scandinavian-American Bank v. WentWorth Lumber Co.

199 P. 626, 101 Or. 158, 1921 Ore. LEXIS 152

CourtOregon Supreme Court

DecidedJuly 12, 1921

StatusPublished

Cited by5 cases

This text of 199 P. 626 (Scandinavian-American Bank v. WentWorth Lumber Co.) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Scandinavian-American Bank v. WentWorth Lumber Co., 199 P. 626, 101 Or. 158, 1921 Ore. LEXIS 152 (Or. 1921).

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Opinions

BEAN, J.

The receiver, A. O. Whitcomb, moves to dismiss the appeal for the reason that the Richard-sons, the appellants, were not parties to the cause. The motion was held in abeyance until the argument on the merits.

Section 549, Or. L., provides that: “Any party to a judgment or decree other than a judgment or decree given hy confession, or for want of an answer, may appeal therefrom.” Section 548, Or. L., provides that: “An order affecting a substantial right, and [162]*162■which in effect determines the action or suit so as to prevent a judgment or decree therein, * * , for the purpose of being reviewed, shall be deemed a judgment or decree.”

Appellants submit that a person does not necessarily have to be a party to an action to be a party to the judgment; that it is sufficient that he or his property is bound thereby, citing, 1 Freeman on Judgments (4 ed.), Section 174. It appears that the real question is whether the appellants would be compelled to commence an independent action against the receiver in order to assert their claim to the funds in question instead of applying to the court which appointed the receiver. A receiver is an officer of the court, and ordinarily cannot be sued without permission of the court. As stated in High on Receivers (4 ed.), page 293, Section 254, “the rule is established for the protection of receivers against unnecessary and expensive litigation, and in most instances a party aggrieved may have ample relief by application on motion to the court appointing the receiver.”

1, 2. It would not be consistent with good procedure, in a case where a receiver has been appointed, to compel parties making claims to various portions of the property in the hands of a receiver to commence separate actions therefor. The appellants presented their claim to the court, and it was adjudicated adversely to them. This appears to have been done without any objection on the part of plaintiff, and the judgment is apparently binding upon all parties to that action. We think the question is raised too late by the receiver, who is not a party to this action, by presenting the same upon this appeal. Whether a formal order of intervention was entered by the trial court or not is not decisive of the question whether [163]*163the appellants were proper parties to the judgment. Third persons may become parties to an action by motion or such other way as in the discretion of the trial court may seem proper: High on Beceivers (4 ed.), p. 162, § 139; Davis v. Gray, 16 Wall. 203 (21 L. Ed. 447); Emphringam v. Short, 3 Hare (25 Eng. Ch. Rep.), 461, 470; Noe v. Gibson, 7 Paige Ch. (N. Y.) 513, 515, 516. See, also, Ambrose v. Brown, 42 App. Cas. (D. C.) 25, 30; Ratcliff v. Adler, 71 Ark. 269 (72 S. W. 896). It is stated in Alderson on Beceivers, Section 521, page 717, thus:

“The trial of a case against a receiver by the appointing court is equivalent to a direct authorization of its institution, and the necessity of formal leave to bring the suit is avoided.”

The motion to dismiss is denied.

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BEAN, J.

The receiver, A. O. Whitcomb, moves to dismiss the appeal for the reason that the Richard-sons, the appellants, were not parties to the cause. The motion was held in abeyance until the argument on the merits.

Section 549, Or. L., provides that: “Any party to a judgment or decree other than a judgment or decree given hy confession, or for want of an answer, may appeal therefrom.” Section 548, Or. L., provides that: “An order affecting a substantial right, and [162]*162■which in effect determines the action or suit so as to prevent a judgment or decree therein, * * , for the purpose of being reviewed, shall be deemed a judgment or decree.”

Appellants submit that a person does not necessarily have to be a party to an action to be a party to the judgment; that it is sufficient that he or his property is bound thereby, citing, 1 Freeman on Judgments (4 ed.), Section 174. It appears that the real question is whether the appellants would be compelled to commence an independent action against the receiver in order to assert their claim to the funds in question instead of applying to the court which appointed the receiver. A receiver is an officer of the court, and ordinarily cannot be sued without permission of the court. As stated in High on Receivers (4 ed.), page 293, Section 254, “the rule is established for the protection of receivers against unnecessary and expensive litigation, and in most instances a party aggrieved may have ample relief by application on motion to the court appointing the receiver.”

1, 2. It would not be consistent with good procedure, in a case where a receiver has been appointed, to compel parties making claims to various portions of the property in the hands of a receiver to commence separate actions therefor. The appellants presented their claim to the court, and it was adjudicated adversely to them. This appears to have been done without any objection on the part of plaintiff, and the judgment is apparently binding upon all parties to that action. We think the question is raised too late by the receiver, who is not a party to this action, by presenting the same upon this appeal. Whether a formal order of intervention was entered by the trial court or not is not decisive of the question whether [163]*163the appellants were proper parties to the judgment. Third persons may become parties to an action by motion or such other way as in the discretion of the trial court may seem proper: High on Beceivers (4 ed.), p. 162, § 139; Davis v. Gray, 16 Wall. 203 (21 L. Ed. 447); Emphringam v. Short, 3 Hare (25 Eng. Ch. Rep.), 461, 470; Noe v. Gibson, 7 Paige Ch. (N. Y.) 513, 515, 516. See, also, Ambrose v. Brown, 42 App. Cas. (D. C.) 25, 30; Ratcliff v. Adler, 71 Ark. 269 (72 S. W. 896). It is stated in Alderson on Beceivers, Section 521, page 717, thus:

“The trial of a case against a receiver by the appointing court is equivalent to a direct authorization of its institution, and the necessity of formal leave to bring the suit is avoided.”

The motion to dismiss is denied.

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Bluebook (online)

199 P. 626, 101 Or. 158, 1921 Ore. LEXIS 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scandinavian-american-bank-v-wentworth-lumber-co-or-1921.

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