Barber v. International Co. , 74 Conn. 652 ( 1902 )

I concur in the results reached by the court, in the propositions involved in those results and upon which they rest, as appears in the opinion, and in the mandate to the Superior Court, so far as it goes, but I think it should go farther.

The order appealed from contains two distinct and independent orders, made in response to separate and independent motions, as appears in the statement of facts.

The first grants permission to the receiver to exercise his discretion in bringing suits, and in the manner of bringing suits as authorized by the judgment of June 22d 1900; this appears in the first three sentences of the order.

The second confirms the claim of Clarence L. Barber, presented to the receiver in pursuance of the order limiting the time for presentation of claims, and allowed by the receiver; this appears in the remaining portion of the order.

The main ground of appeal is that each order is in fact a further judgment rendered after a final judgment.

The judgment of June 22d found the material issues raised by the pleadings in favor of the plaintiff, and thereupon granted the relief demanded in the prayer for relief. There is, and can be, no contention but that this judgment, as affirmed by this court (73 Conn. 587), is final between the parties to the complaint, and cannot be amended by a further judgment between the parties, in respect to the allegations of the complaint and the relief demanded. It is equally clear that the judgment does not terminate the cause; it remains the duty of the court to administer the relief granted, by supervising the conduct of the receiver and making such orders as may be necessary to settle the rights of all parties to the receivership proceedings.

The relief demanded and granted was the appointment of a receiver to receive and collect debts due the defendant, and other property belonging to it, and to enforce rights belonging to it; and for such purposes to maintain suits in any jurisdiction, which may be necessary to obtain payment of said debts or enforcement of said rights, and especially to bring such suits in England, in order to enforce against the English company the contract of May 4th, 1889, made between that company and the defendant. The equity in the plaintiff enforceable against the defendant, held to support the judgment, and the nature and extent of the relief granted by that judgment for the purpose of enforcing such equity, appear in the record of the former appeal; it is also included in the record now before us, and in the opinion announcing our affirmance of the final judgment.

The first order now appealed from purports to give special authority to the receiver to bring suits in the English courts, and a wide discretion as to his mode of procedure. Such permission of course applies to suits authorized by the judgment of June 22d 1900, as stated in the motion asking for permission; that is, to suits necessary for the purposes of the receivership established by the judgment. Whether or not there is necessity for this special permission is a question not before us; such permission is clearly not a judgment, nor is it an order settling any rights of parties to the receivership proceedings.

But this order goes farther. It purports to give the receiver, and possibly the plaintiff, authority to make the defendant corporation a defendant in suits he may bring against it, and authority to enter an appearance for it and to dictate its defense. Such authority plainly gives relief not authorized by the final judgment, and is not only inconsistent with that judgment but inconsistent with principles that limit all judicial action. Whether regarded as an order, or as a further judgment after a final judgment, it is invalid.

The second order is in legal effect a mere confirmation of a creditor's claim allowed by the receiver. However inappropriate its language may be, its legal effect is certain. It is not an adjudication between Barber and the company as plaintiff and defendant in the action, in respect to the allegations of the complaint, but is simply a determination upon motion of the receiver in respect to a creditor's claim filed with the receiver in pursuance of the order limiting the time for presentation of claims, settling, for the purposes of the receivership proceedings and distribution of assets, the validity and amount of the claim. It is not a money judgment against the defendant, nor is it a further judgment rendered after a final judgment.

We hold that a portion of the order is invalid, because it attempts to add, to the relief granted, further relief inconsistent with the final judgment and obnoxious to settled principles of law.

We hold that other portions of the order are not invalid, because they are not inconsistent with, and do not add to, the relief granted by the final judgment; because they are merely discretionary orders in the administration of that relief for the purposes of the receivership as defined by the judgment.

It is therefore proper that the order should be remanded not only for the excision of that part which is invalid, but also for the correction of the remainder, whose validity depends on our construction of the language in which it is expressed, so that the language may clearly conform to the true meaning and legal effect of the order as determined by our decision. The claim that we have no control over the language of the order, under such circumstances, seems to me unfounded.

It is suggested that having determined the meaning of the order upon the language used, the correction of that language so as to conform to the meaning given it, is unnecessary; and that the language used, in view of our construction, can do no harm. Probably this is true; certainly it can do no good.

The record shows no reason for the use of such peculiar phraseology, and no reason was advanced in argument except the statement of plaintiff's counsel, that it was dictated by the plaintiff's English counsel in litigation pending in England between the plaintiff and the English company.

It is undoubtedly true that the order is not made for home consumption. There is nothing in this jurisdiction upon which it can operate, and it can have no force elsewhere except that which may be given it by a foreign court. There seems all the more reason therefore for exactness in framing the order. In such case harmlessness can hardly be affirmed of language which requires judicial construction to impress upon it a meaning necessary to support the validity of the order.

The order should be remanded to the Superior Court for correction of the error in substance, and that the language of the remaining portion may be reformed so as to clearly express the true meaning and legal effect of the order as settled by the decision and opinion of the court.