it was adjudged in said action that plaintiff the corporation had failed to prove a sufficient case against them, or either of them, or the assets of said firm. (The proceedings in that trial do not appear here, except that the complaint and answer and judgment are set forth.) 3. That none of the other creditors of the firm of Painter & Co. are made parties to this proceeding or notified thereof, alleging that there are other creditors, but naming none (it does not appear who are creditcrs, except as above shown); also, for the further reason that no order can be properly made for the payment of said judgment until the receiver has presented his account showing the condition of said firm. 4. That said judgment can have no other or further weight than an ascertainment of indebtedness by the receiver to said corporation, and that payment cannot be made except upon final liquidation of the affairs of the firm and the settlement and adjustment of its liabilities. 5. That the defendants in this present action have given notice of intention to vacate the judgment rendered herein and they object to payment of the corporation's judgment or any sale of the firm's assets while it is undetermined whether the receiver was rightfully appointed or not. On September 22, 1898, the court made its order directing payment of said judgment in favor of said corporation and the sale of sufficient of the personal and real property in the hands of the receiver belonging to Painter & Co. to pay the 236 said judgment. It is from this order that the defendants Theodore P. Painter and J. Milton Painter appeal.

Respondent claims that Milton Painter is improperly joined in the appeal, because he was not a member of the firm, and if he has any interest in the firm assets it does not appear, and therefore he cannot be injured by the sale. His claim, we understand, is a share of the ownership in the directory or its proceeds, but his interest therein was not shown by him in the suit of the corporation nor in the opposition to the order. However, all the points made arise on Theodore's appeal, and it is not necessary to decide the question at this time.

The contention of appellants is, that the judgment against the receiver is not conclusive against Theodore, the surviving partner, for the reason that he has had no opportunty to be heard, and that in order to save his property he may now attack the judgment on its merits. But the record shows that he had an opportunity to attack the claim of the corporation. in its suit against the receiver, for he was a party defendant

thereto, and on his own motion the cause was dismissed as to him. The reason assigned was, that no case was shown against him, and probably could not be. But he was a party defendant, and could have set up, and in fact did plead, facts which would probably have defeated the corporation's suit had they been established. Furthermore, we are of the opinion that the judgment was conclusive against the surviving partner, whether or not he had been made a party to the action. The court granted leave to sue the receiver. The claim was in the nature of costs incurred by the receiver in the management and conduct of the business under his control, precisely as if he had himself incurred the liability in the direct publication of the directory, as he had done in previous years, and had become indebted for material and labor. In such case he would become liable as receiver, and the estate intrusted to his manage inent would be chargeable with payment. He represented all persons interested in the estate, and the judgment was conclusive upon them as well. Although the judgment became final by failure to appeal therefrom or to move for a new trial, it could not be enforced by execution, and the creditor applied to the court for the order in question, as accords with the practice in such cases. "The judgment should be against the receiver in his official capacity, leaving the matter of its enforcement 237 to be determined by the court having jurisdiction of the receivership. . . . . The manner of paying the judgment is under the exclusive control of the court in which the receivership proceeding is pending, and to it there must be an application for its payment. Execution cannot be issued against a receiver; the judgment only operates as an established claim against the assets in the possession of the receiver": Beach on Receivers, sec. 720. The judgment is conclusive against the receiver, and is, we think, conclusive as to all whom he represents: Beach on Receivers, secs. 659, 721.

The petition for an order to enforce the judgment could not be defeated by the attack on the judgment, for, as was said by Mr. Beach: "It is apparent that if a judgment against a receiver, where presented to the court having jurisdiction of the receivership proceeding for payment, may be modified, changed, or rejected, the trial of the cause in which it was rendered would be but an empty and useless formality": Beach on Receivers, sec. 721. Nor does this view conflict with the rule relied on by appellants, that a judgment is only conclusive against parties and privies. The receiver represented creditors

and the partners. It was not necessary to the conclusiveness of the judgment that the surviving partner and all the creditors, if there were such, as is alleged in defendants' answer, should be made parties to the action against the receiver; nor was it necessary that they should be made parties to the petition for an order to enforce payment. But defendants being so made parties, they, as well as the receiver, could only be heard to oppose the petition on proper grounds, and could not attack the judgment. At the hearing neither defendants nor the receiver showed cause why the order should not be made. The defendants submitted no evidence outside the papers in the case, and the evidence tended to support the order.

It is further contended that the court exceeded its jurisdiction in authorizing the receiver to enter into the contract. This contention is urged mainly on the ground that it is made the duty of the surviving partner to wind up the affairs of the partnership: Code Civ. Proc., sec. 1585. It is urged that the receiver has taken an unreasonable time in which to settle the affairs of the partnership. All this may be true, and it 238 yet remains that the court had the power to appoint the receiver: Code Civ. Proc., sec. 564. If his administration has been unduly prolonged, or he has been unfaithful to his trust, defendants have had a remedy by applying for his discharge, and they could have opposed the appointment in the first instance. The order now under review cannot be attacked on the ground that the court erred in originally appointing the receiver; nor can we see anything in the record to warrant the claim that the court abused its discretion in granting the order. What are the merits underlying the long-delayed settlement of this partnership business? Whether a receiver should have been appointed at all, and where the fault lies, if any, in his administration, are questions not now before us.

It is claimed that it was error to order the judgment to be satisfied out of any of the assets of the firm except the directory business. We find nothing in the contract thus limiting the liability to the corporation, and we see no reason why it should be thus limited. In view of the fact found by the court, that, notwithstanding the corporation performed all the covenants of the contract on its part, the publication resulted in a loss, it would be inequitable to cast this loss on the corporation, or compel it to look alone to a single asset of the partnership that might be insufficient to make the corporation whole. In

a sense, the directory business was a separate business, but it was only a separate part of an entire business.

We are unable to agree with appellant that the claim of the corporation should abide a final settlement of the accounts of the receiver, and that in obtaining the order it should have made other creditors parties to the petition. It does not appear that the payment of this judgment will exhaust the estate or prevent any known or alleged creditors from being paid. That they have not pressed their claims and made similar demand for the receiver to sell assets and pay their claims furnishes no reason for delaying the payment of this judgment. The necessity for the sale was fully shown, and that payment could not otherwise be made.

The order is affirmed.

Harrison and Garoutte, JJ., concurred.
Hearing in Bank denied.

EFFECT OF JUDGMENTS AGAINST RECEIVERS. I. Conclusiveness of Judgment.

a. On Parties Represented.

b. In Courts Other Than Those Appointing Receiver.

II. Personal Liability of Receiver.

a. In General.

III. Enforcement and Satisfaction of Judgment.

a. Manner of Enforcement.

I. Conclusiveness of Judgment.

a. On Parties Represented.-A judgment rendered against a receiver in his official capacity is conclusive upon all persons whom he represents: See Painter v. Painter (the principal case), ante, p. 47; Texas Pac. Ry. Co. v. Griffin, 76 Tex. 441, 13 S. W. 471. And according to the principal case, it seems that if a judgment is recovered against a receiver of a partnership by one creditor on a claim in the nature of costs incurred by him in the management of the firm business, it is binding on other creditors and the surviving partner, whether they are made parties to the action or not. But it is held that when a receiver is appointed in supplementary proceedings, not in a general creditors' bill properly constituted but in a single creditor's suit wherein the creditor is trying to enforce his own particular demand, and the receiver brings suit to recover a note claimed to be the property of the debtor, a judgment against him

*REFERENCES TO MONOGRAPHIC NOTES.

Suits against receivers without leave of court: 74 Am. St. Rep. 285-300,
Power to create liens by receivers: 83 Am. St. Rep. 72-80.
Relation of receivers to pre-existing liens: 71 Am. St. Rep. 352-384
When it is proper to appoint a receiver: 72 Am. St. Rep. 29-97.

binds none of the creditors except the one who instituted the supplementary proceedings in his own behalf and not for the other creditors: Southern Loan etc. Co. v. Benbow, 131 N. C. 413, 42 S. E. 896. So a judgment recovered in a separate suit against a receiver and not in the course of the general proceedings of the receivership is not evidence against those not parties to it, to establish a prior lien in favor of the judgment debtor: Sullivan v. Texas etc. Coal Co. (Tex. Civ. App.), 60 S. W. 330. This case was reversed, on the question of priority of liens, in the supreme court of Texas: Sullivan v. Texas etc. Coal Co., 94 Tex. 541, 63 S. W. 307.

Of course, a finding as to the existence of a certain fact in an action by a receiver is not res judicata as to such fact in a subsequent action between different parties and for different claims: Brown v. Clow, 158 Ind. 403, 62 N. E. 1006.

b. In Courts Other Than Those Appointing Receiver.-Under the act of Congress, March 3, 1887, declaring that a receiver appointed by a federal court may be sued without previous leave of that court, but that such suit shall be subject to the general equity jurisdiction of the court in which the receiver is appointed, so far as the same shall be necessary to the ends of justice, a judgment obtained against a receiver in a state court is, by the weight of authority, conclusive as to the existence and amount of the plaintiff's claim: Dillingham v. Russell, 73 Tex. 47, 15 Am. St. Rep. 753, 11 S. W. 139; Garrison v. Texas etc. Ry. Co., 10 Tex. Civ. App. 136, 30 S. W. 725; Dillingham v. Hawk, 60 Fed. 494.

When this question arose in Central Trust Co. v. St. Louis etc. Ry. Co., 41 Fed. 551, Justice Caldwell remarked: "The court is asked to qualify the order relating to judgments recovered in state courts, by adding a proviso to the effect that, when it is shown that the judgment is for a grossly excessive amount, this court will reduce it to a just and reasonable sum. This court will not entertain the suggestion that its receiver will not obtain justice in the state courts. The act of Congress gives the right to sue the receiver in the state court: Central Trust Co. v. St. Louis etc. Ry. Co., 40 Fed. 426. The state court has jurisdiction of the parties and the subject matter, and its judgment against the receiver of this court is as final and conclusive as it is against any other suitor. The right to sue the receiver in the state court would be of little utility, if its judgment could be annulled or modified at the discretion of this court. It is open to the receiver to correct the errors of the inferior courts of the state by an appeal to the supreme court. But this court is not invested with appellate or supervisory jurisdiction over the state courts, and cannot annul, vacate, or modify their judgments: Randall v. Howard, 67 U. S. (2 Black ) 585; Nougue v. Clapp, 101 U. S. 551,"

And in the subsequent case of Central Trust Co. v. East Tennessee etc. By. Co., 59 Fed. 523, Justice Lurton says: "A wide difference