Highland Ave Company v. Columbian Equipment Company/Opinion of the Court

by David Josiah Brewer

United States Supreme Court

168 U.S. 627

Highland Ave Company  v.  Columbian Equipment Company

Is an interlocutory order appointing a receiver appealable from the circuit court to she circuit court of appeals? And if such an order, standing alone, be not appealable, does it become so by the incorporation into it of a direction to the defendant, its officers, directors, agents, and employees, to turn over and deliver to the receiver the property in their hands? These questions must be determined by a consideration of section 7 of the act of March 3, 1891, creating circuit courts of appeal (26 Stat. 517), as amended February 18, 1895 (28 Stat. 666). That section provides:

'That where, upon a hearing in equity in a district court or a circuit court, an injunction shall be granted, continued, refused, or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall be refused in a case in which an appeal from a final decree may be taken under the provisions of this act to the circuit court of appeals, an appeal may be taken from such interlocutory order or decree granting, continuing, refusing, dissolving, or refusing to dissolve an injunction to the circuit court of appeals: provided, that the appeal must be taken within thirty days from the entry of such order or decree, and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court during the pendency of such appeal: and provided further, that the court below may in its discretion require, as a condition of the appeal, an additional injunction bond.'

Under this section it has been decided that, when an appeal is taken from n inter locutory order or decree granting or dissolving an injunction, the whole of such interlocutory order or decree is before the court of appeals for review, and not simply that part which grants or dissolves the injunction, and that on the hearing in the court of appeals that court may consider and decide the case upon its merits. Smith v. Iron Works, 165 U.S. 518, 17 Sup. Ct. 407; In re Tampa Suburban R. Co., 18 Sup. Ct. 177. But each of those cases proceeded upon the fact that there was a distinct order granting, continuing, or dissolving an injunction. In the case at bar there is no such order. It is true, following the order of appointment, there is a direction to the defendant, its officers, directors, and agents, to turn over to Campbell the property of which he is appointed receiver, but that is only incidental and ancillary to the receivership. This is obvious, for, if the court subsequently entered an order in terms setting aside only the appointment of the receiver, all the other parts of the original order would immediately and without specific mention disappear and cease to have any force. Indeed, the mere appointment of a receiver carries with it the duty on his part of taking possession, and the further duty of those in possession of yielding such possession. So that while, as a part of an order appointing a receiver, there is something in the nature of a mandatory injunction,-that is, a command to the receiver to take, and to the defendant to surrender, possession,-yet such command is not technically and strictly an order of injunction.

The last proviso in the section emphasizes this distinction: 'The court below may, in its discretion, require, as a condition of the appeal, an additional injunction bond.' The bond is described. It is not a bond to secure against injuries which may result if a receiver is wrongfully appointed or discharged, but is technically an injunction bond; that is, a bond to answer for damages, in case of a wrongful order either granting, continuing, or vacating an injunction. Receivership implies possession, and, if no bond can be required to guard against loss from taking or surrendering possession, it is difficult to perceive the significance of an additional injunction bond in a receivership case. The question is not whether included in an order appointing a receiver there may not be, either expressed or implied, some directions of a mandatory character,-something in the nature of an injunction,-but whether congress in this legislation provided for appeals in cases other than those in which an injunction, technically speaking, is either the sole or a principal part of the order or decree. Orders granting injunctions and orders appointing receivers are, in the common understanding of the profession, entirely independent. The distinction between the two is clearly recognized in the text-books and in the reports. We have separate treatises on injunctions and on receivers. The separation between them is one which runs through the law, and while it is true that the mandatory features which, either expressly or by implication, attend orders appointing receivers, are sometimes made the matter of discussion in treatises on receivers, or the subject of comment in decisions concerning receivers, yet the distinction is never forgotten. Familiar, as it must be assumed to have been, with this generally recognized distinction, congress, if it had intended that appeals should be allowed from orders appointing receivers, as from orders in respect to injunctions, would doubtless have expressly named such orders. Its omission of the one and the mention of the other is a clear declaration that only one should be the subject of appeal, and the other not. And it would savor of judicial legislation to hold that, although congress has not authorized appeals from orders appointing receivers, the mere fact that in such an order there is a direction of a mandatory character, either expressed or implied, in respect to taking possession, makes it appealable, as an order granting an injunction.

For these reasons, we are of opinion that the question should be answered in the negative, and it will be so certified to the court of appeals.

Notes