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Martin & Co. v. Kirby

December 31, 1911

E. MARTIN & CO. (A CORPORATION), RESPONDENT, V. W. P. KIRBY AND THE UNITED STATES FIDELITY AND GUARANTY COMPANY (A CORPORATION), APPELLANTS. J. & A. FREIBERG (CO-PARTNERS) RESPONDENTS, V. W. P. KIRBY AND THE UNITED STATES FIDELITY AND GUARANTY COMPANY (A CORPORATION), APPELLANTS.


Appeal from the District Court of the Seventh Judicial District, State of Nevada, in and for Esmeralda County; Theron Stevens, Judge.

Bryan & O'Brien, F. C. Shin, and Chas. L. Lyman, for Appellant.

T. L. Foley and John F. Kunz, for Respondent.

By the Court, Norcross, J. (after stating the facts as above):

The contention of counsel for the appellant that the liability of the appellant herein is secondary, and does not arise until the receiver has failed or refused to do some act which he is legally bound to do, may be conceded.

Counsel for appellant mainly rely upon the following proposition: “The complaint charges a failure to pay over

[34 Nev. 205, Page 214]

certain sums to the various plaintiffs, and that is the only breach charged. It must be shown that Kirby was legally liable to pay those sums, and his failure to pay is not a breach for which this defendant is liable. Kirby was not liable to pay for the following reasons: (a) There had never been an accounting of his receivership. (b) There was never a valid order of distribution.”

There can be no question, we think, that the account filed by the receiver on the 30th day of December, 1908, was a final account. It was filed as a final account and contained all of the receipts and disbursements of the receiver and was a full statement of his transactions. In considering this account and the objections interposed thereto, the court took testimony and the entire matter was fully presented to the court. We agree with counsel for appellant in certain of his contentions relative to the order made upon this hearing. If the court had carried into its order the various matters discussed in the opinion of the trial judge, it would have been a complete disposition of the matter presented to the court for determination.

The court should have specifically approved those portions of the account which it deemed proper and have specifically disallowed those items contained in the receiver's account which the court referred to in its opinion as being illegal charges. There does not appear to have been any question as to the gross amount the receiver was required to account for. Neither the receiver nor the objecting creditors at the time suggested to the court that the order should be more specific.

We need not determine whether the order in the form in which it was entered was appealable as it unquestionably would have been had the court specifically allowed or rejected all of the items of the account and directed a distribution of the funds remaining in the hands of the trustee.

The orders of June 12, 1909, are not open to the objection that they do not direct the payment to certain creditors of specific amounts of money. These orders should

[34 Nev. 205, Page 215]

be considered in connection with the prior order sustaining the objections to the receiver's final account. These orders are appealable, and if they were before us upon appeal the objections thereto made by counsel for appellant might or might not be well taken.

It is sufficient for the purposes of the present case, which is collateral to the case of Blatt v. Cobweb Company, in which said orders were made, to say that they are not open to attack in this action. (Deegan v. ...


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