Burgess v. Lasby , 91 Mont. 482 ( 1932 )

ON PETITION FOR REHEARING. (Decided March 1, 1932.) On petition for rehearing counsel for defendants contend that questions decisive of the case were overlooked by the court and they undertake to point out that the record with the original order considered does not affirmatively show that there was due compliance with the statutory requirements relating to the appointment of a receiver. The contention is predicated upon the fact that the register of actions does not show any application for the appointment of a receiver, or that notice of the hearing was filed as required by statute. From this it is argued that no application was made and that notice was not served upon defendants.

Defendants' proof goes no further than to establish that the[4] register of actions did not show the filing of the papers mentioned, but there is not any evidence that they were not in fact filed or that defendants were not served with notice as recited in the order appointing the receiver. That is to say, the evidence does not show that the recitals contained in the order of appointment are not true.

"The clerk must keep among the records of the court a register of actions. He must enter therein the title of the action, with brief notes under it, from time to time, of all papers filed and proceedings had therein." (Sec. 9822, Rev. Codes 1921.) It is presumed "that official duty has been regularly performed." (Sec. 10606, subd. 15, Id.) In other words, it will be presumed that, had application and notice of hearing been filed, the clerk would have made the proper entries in the register of actions; that is, that he performed his statutory duty. But this same presumption attaches to the official acts of the court. Furthermore, it is presumed "that a court or judge, acting as such * * * was acting in the lawful exercise of his jurisdiction." (Id., subd. 16; Bury v. Bury, 69 Mont. 570,223 P. 502.)

In the final analysis the petition for rehearing presents this question: Does the presumption that the clerk performed his duty — a ministerial act — overthrow the presumption which attaches to the solemn judicial act and adjudication of the court? To ask the question is to answer it. The formal written order appointing the receiver was signed by the judge, presumably after deliberation and mature reflection upon the matter involved. Such an order should be accorded greater weight, and should be regarded as more solemn evidence of the facts recited therein, than the presumption which attaches to the official acts of the clerk.

"The recital of jurisdictional facts in an order appointing a[5, 6] receiver is prima facie evidence of the existence thereof" (53 C.J. 69; Starr v. Bankers' Union, 81 Neb. 377, 129 Am. St. Rep. 684, 116 N.W. 61), and the burden of proof was upon defendants to establish all the facts on which they relied as the basis of their motion to vacate and set aside the order appointing the receiver. A judgment or order of a court of general jurisdiction ought not to be set aside except upon clear, satisfactory, and convincing evidence; certainly not upon a mere statutory presumption. The order imports verity and cannot be impugned except on clear and convincing evidence. The integrity and value of our judicial system, as an institution of public justice, rests largely upon this principle, and to permit a statutory presumption to overthrow the solemn judicial act of a court of competent jurisdiction would subject every order and judgment to uncertainty and make their integrity depend upon the question of whether or not a ministerial officer had fully performed his statutory duty. (Willis v. Superior Court, (Cal. Sup.) 7 P.2d 303.)

Had defendants established as facts that no application for the appointment of a receiver was made, or that notice thereof was not served upon them, an entirely different question would be presented, but such a showing was not made; the evidence discloses only that the register of actions does not show that these papers were filed and falls far short of the character of evidence necessary to overcome the presumptions which attach to the order.

The decisions in State ex rel. Thornton-Thomas Merc. Co. v.Clancy, 20 Mont. 284, 50 P. 852, Forrester v. Boston etc.Min. Co., 22 Mont. 430, 56 P. 868, State ex rel. Cohn v.District Court, 38 Mont. 119, 99 P. 139, Benepe-OwenhouseCo. v. Scheidegger, 32 Mont. 424, 80 P. 1024, Masterson v.Hubbert, 54 Mont. 613, 173 P. 421, Doggett v. Johnson,77 Mont. 461, 251 P. 145, Rochester v. Bennett, 74 Mont. 293,240 P. 384, relied upon by defendants on petition for rehearing, in no way conflict with the opinion in this case. In effect, the cases cited correctly hold that on motion to vacate an order appointing a receiver the court will examine into the proceedings back of the order of appointment, and, if it is shown that the court was without jurisdiction to make the order, it will be set aside, but in each of the cases cited the lack of jurisdiction was established beyond question.

The petition for rehearing is denied.

MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN and ANGSTMAN concur.

MR. JUSTICE MATTHEWS, being disqualified, takes no part in the above decision.