in New Jersey the court will not, on certiorari, reverse the order appointing a receiver, if there is any evidence which goes to support the allegations required by the statute to be stated in the petition, and the judges consider and decide that a case for a receiver is made out. Under such circumstances the reviewing court will not weigh the evidence, but it is sufficient if there is that which gives the judge below jurisdiction or power to make the order. (7) Mandamus.-Mandamus does not lie in Michigan, whether an appeal does or not, to review an order for the appointment of a receiver for an assigned estate.2 W. REVIEW ON APPEAL.-It is the general rule under the Georgia decisions that the discretion of the lower court in appointing or refusing to appoint a receiver, will not be interfered with by the appellate court unless there has manifestly been an abuse of such discretion, or a violation of some recognized principle of law.3 And a like doctrine appears to prevail in New York,4 and in Alabama. In Michigan in reviewing the action of the judge of the lower court in appointing a receiver, two things will be considered. First, whether the discretion vested in him has been abused; and, second, whether a right has been impaired by such appointment.6 (1) Where Order Made After Final Judgment.-On an appeal from an order made after final judgment directing a receiver to pay moneys in his hands over to the prevailing party, the superior court cannot in California, review the order appointing the receiver.7 (2) Where Interlocutory Order.-Upon an appeal from an interlocutory order appointing a receiver, in Indiana no formal ruling will be made upon the sufficiency of the complaint as a pleading in the action; although it may be looked to, in connection with the evidence in determining whether a receiver ought to be appointed.8 1. Journeay v. Brown, 26 N. J. L. 116. 2. Scott v. Wayne Circuit Judge, 58 Mich. 314. As to denial of mandamus to regain possession of attached property by petitioner who had appealed from an order affirming the appointment of a receiver, and given a supersedeas bond, see Ex parte Tilman (Ala. 1891), 9 So. Rep. 527. 3. Gardner v. Howell, 60 Ga. 20. See also, Reid v. Reid, 38 Ga. 29. So in the case of an injunction and receiver. See Barlow v. Eason, 60 Ga. 596; Augusta Ice Mfg. Co. v. Gray, 60 Ga. 346; Jones v. Johnson, 60 Ga. 262;` Douglas v. Fitzgerald, 56 Ga. 526; Gunby v. Thompson, 56 Ga. 319; Esterland v. Dye, 56 Ga. 285; Wolfe v. Claflin, 81 Ga. 65. The same rule applies to the granting or refusing of an injunction alone. See Tison v. Dart, 60 Ga. 596; Girardey v. Moore, 56 Ga. 526; Ellis v. Jones, 56 Ga. 504; Banand v. Genesi, 42 Ga. 641; and to the refusal to grant a motion to revoke the appointment of a receiver, Cohen v. Meyers, 42 Ga. 49; and to the refusal to dissolve an injunction and revoke the appointment of a receiver, Robenson v. Ross, 40 Ga. 385. 4. See Ostrauder v. Weber, 114 N. Y. 103. 5. Miller v. Lehman, 87 Ala. 517, 519. 6. Turnbull v. Prentiss Lumber Co., 55 Mich. 397; 8 Am. & Eng. R. Cas. 257. 7. Whitney v. Buckman, 26 Cal. 454. 8. Naylor v. Sidener, 106 Ind. 183, x. EFFECT OF APPEAL.-An appeal which, when perfected, vacates the judgment which is the basis of the appointment of a receiver, necessarily vacates the right to a receiver. But an appeal from an adjudication of involuntary insolvency does not suspend the functions of the receiver.2 It may, indeed, be imperatively necessary to the preservation of the estate that such suspension should not take place. Nor does the pendency of a writ of error to an order made at chambers continuing an application for a receiver until the hearing prevent the court from granting the application, on the same bill and the same facts, in term time, and before the main case is brought on for final hearing.3 y. SUPERSEDEAS UPON APPEAL.-A supersedeas granted upon an appeal from an order allowing a preliminary injunction and appointed a receiver pendente lite, suspends the operation of the order, and prohibits the further action of the receiver in carrying out the mandate of the order from which the appeal is taken.+ But in a proper case a receiver may be appointed to preserve the rents and profits of land, notwithstanding the case is pending in the supreme court upon an appeal and supersedeas.5 2. WHEN APPOINTMENT WILL NOT BE VACATED.--Where the chancellor, at the instance of a member of a firm, bringing a bill against another, who has assumed its debts on dissolution and covenanted to save the other partners harmless, appointed a receiver to take charge of the old stock and such property as has been purchased by the proceeds of sales of what was once joint property, the appellate court will not direct such order to be vacated unconditionally where the party complained of is pursuing such a course as to disposition of property, etc., as will render any relief that may be given by decree inoperative. REGULARITY OF APPOINTMENT. The aa. QUESTIONING following Hursh v. Hursh, 99 Ind. 500, and distinguishing Main v. Ginthert, 92 Ind. 180. What Constitutes Error.-An order appointing a receiver will not be reversed for error, in West Virginia, unless such error is prejudicial to the appellant. Clark v. Johnston, 15 W. Va. 810. But the chancellor has been held, in Georgia, to have erred in permitting a voluntary bond to become part of the cases as cause shown against a prayer for an injunction and a receiver where such bond was not an adequate substitute for these remedies. Harrison v'. Cotton States L. Ins. Co., 78 Ga. 732. 1. Allen υ. Chadburn, 3 Baxt. (Tenn.) 226. But the office of receivers was held not vacated by an appeal, in Swing . Townsend, 24 Ohio St. 2. 2. In re Real Estate Associates, 58 Cal. 356. 3. McCaskill v. Warren, 58 Ga. 287. 4. State v. Johnson, 13 Fla. 43 et seq. 5. Hutton v. Lockridge, 27 W. Va. 433. 6. West v. Chassen, 12 Fla. 333 et seq. Where, upon a suit between partners for a dissolution, the partnership property comes into the hands of a receiver, before one claiming a special lien levies his attachment upon it, and such claimant desires to vacate the order appointing the receiver, he must proceed by filing a petition setting forth the facts upon which he relies to obtain a vacation of the appointment; and a summary proceeding by motion is not the appropri ate method. Jacobson v. Landolt, 73 Wis. 145. opposing party cannot question the regularity of the order appointing a receiver, or the proceedings generally, upon a mere formal motion to substitute one person for another as receiver in the action; and such is the case, although the motion be founded, by the notice, upon the pleadings, decree, and proceedings in the action, as well as upon affidavits.1 Nor can a stockholder of a corporation, after having joined in an application made to the court by the receiver for authority to sell the assets of the corporation, be permitted to question the regularity or validity of the receiver's appointment, or of the order directing the sale.2 bb. COLLATERAL ATTACK ON APPOINTMENT.-The legality of the appointment of a receiver cannot be questioned in a collateral proceeding by defendants who have fully and completely recognized such officer as legally appointed.3 IV. POWERS, RIGHTS, DUTIES AND LIABILITIES-1. Functions a. OFFICE ONE OF CONFIDENCE AND TRUST.-The office of receiver is one of confidence and trust. The primary object of his appointment is to preserve the fund or property so that it may be appropriated as the final decree shall direct. The custody of receivers is the custody of the law, and is in its nature provisional and suspensive. In recent years both in England and in the United States, there has been a strong tendency towards enlarging the scope of receiverships.5 1. Fassett v. Tallmadge, 13 Abb. Pr. (N. Y.) 13. Against disposing of question on affidavits, see Palen v. Bushnell, 51 Hun (N. Y.) 425. Against raising objection on general demurrer, see Walsh 7. Byrnes, 39 Minn. 527. 2. Battershall v. Davis, 31 Barb. (N. Y.) 327. So the regularity of the appointment of a receiver of a life insurance corporation upon petition of the attorney-general, cannot be questioned collaterally by any other tribunal than the one by which he was appointed. Attorney-General v. Guardian Mut. L. Ins. Co., 77 N. Y. 275. Nor can a borrower, after making payments to a receiver appointed for his creditors in proceedings to which he was not a party, afterwards question the validity of the appointment in proceed ings against himself for the enforcement of his debt. Burton v. Schildbach, 45 Mich. 513. A person claiming title to United States bonds by assignment from a national bank, cannot, in a suit to enforce his rights, question the validity of the appointment of a receiver of such bank in regard to other property than the bonds. Van Antwerp v. Hulburd, 8 Blatchf. (U. S.) 285. 3. Skinner v. Lucas, 68 Mich. 432. See also Burton v. Schildbach, 45 Mich. 513. Against collateral questioning of appointment claimed to be void, see Connor v. Bray, 83 Ala. 217. 4. "A receiver is an indifferent person between parties, appointed by the court to receive the rents, issues or profits of land or other thing in question in this court, pending the suit, where it does not seem reasonable to the court that either party should do it. Wyatt's Prac. Reg. 355. He is an officer of the court; his appointment is provisional." Booth v. Clark, 17 How. (U. S.) 331. In Myers v. Estell, 48 Miss. 401, the court said: "Receivership is one of those remedial agencies devised originally in order to preserve the fund or thing from removal beyond the jurisdiction or from spoliation, waste or deterioration, pending the litigation. This was the original purpose; a preservation of the thing so that it might be appropriated as the final decree shall appoint." See also Hooper v. Winston, 24 Ill. 353; Miller v. Bowles, 10 Nat. Bank. Reg. 515; Beverley v. Brooke, 4 Gratt. (Va.) 208. 5. In Davis v. Gray, 16 Wall. (U. S.) 221, Justice Swayne said: "In the b. REPRESENTS THE COURT.-A receiver represents the court,1 but he is appointed for the benefit of all parties who may establish rights in the cause.2 c. FUNCTIONS OF SECOND RECEIVER.-Where a receiver has been appointed pendente lite over property in controversy, and another receiver has already been appointed over the same property in another proceeding, the functions of second receiver are subordinate to those of the first; and he is only entitled to the custody of the property after the first receivership has terminated.3 d. SUSPENSION OF FUNCTIONS BY APPEAL.--Where an appeal is taken from the order of court appointing a receiver, and the court grants a supersedeas, the receiver can no longer exercise his functions, and if he does so, he may be punished as for contempt.+ progress and growth or equity jurisdiction it has become usual to clothe such officers with much larger powers than were formerly conferred. In some of the States they are by statutes charged with the duty of settling the affairs of certain corporations when insolvent, and are authorized expressly to sue in their own names. It is not unusual for courts of equity to put them in charge of the railroads of companies which have fallen into financial embarrassment, and to require them to operate such roads, until the difficulties are removed, or such arrangements are made that the roads can be sold with the least sacrifice of the interests of those concerned. In all such cases the receiver is the right arm of the jurisdiction invoked. As regards the statutes, we see no reason why a court of equity, in the exercise of its undoubted authority, may not accomplish all the best results intended to be secured by such legislation, without its aid." 1. In New York, etc., Tel. Co. V. Jewett, 115 N. Y. 168, Earl, J., said: "In the action commenced against the Erie Railway Company, the court had taken into its possession the property of the company to dispose of, manage and administer it for the benefit of all parties interested therein, or having any claims against the same; and the receiver was merely its officer, arm or agent, to take possession of the property and manage and dispose of the same under its direction and subject to its control. He could at any time be discharged by the court and another receiver appointed, or the property could be taken out of his hands and re stored to its owner or otherwise be disposed of under the judgment in the actions in which he was appointed." In Attorney-Gen'l v. North American L. Ins. Co., 89 N. Y. 103, the court said: "The receiver is the officer of the court. It made him and can unmake him. He has no independent authority or power. He is the mere agent or instrument through whom the law takes into its own custody the assets and property of the insolvent corporation, closes its business and makes its final distribution. The receiver is under the control of the court. He can do nothing without its orders." See also Beverley v. Brooke, 4 Gratt. (Va.) 208; Hills v. Parker, 111 Mass. 510; 15 Am. Rep. 63; Davis v. Gray, 16 Wall. (U. S.) 218. 2. A receiver is appointed in behalf of all parties, and not of a complainant or of a defendant only. He owes an equal duty to all alike, and he is responsible to the court alone. Booth v. Clark, 17 How. (U. S.) 331; Delany v. Mansfield, 1 Hog. 234; Ex parte Jay, L. R., 9 Ch. 133; Beverley v. Brooke, Gratt. (Va.) 208; Lottimer v. Lord, 4 E. D. Smith (N. Y.) 183; Curtes v. Leavitt, 15 N. Y. 9; Libby v. Rosekrans, 55 Barb. (N. Y.) 202; Baker v. Backus, 32 Ill. 79. 3. Bailey v. Belmont, 10 Abb. Pr., N. S. (N. Y.) 270; Bailey v. O'Mahoney, 33 N. Y. Supr. Ct. 239. 4. State v. Johnson, 13 Fla. 33. In Everett v. State, 28 Md. 190, it was held that if an appeal be taken from the order appointing the receivers, and the latter are directed to return the property over which the receivership e. TERMINATION OF FUNCTIONS. The receiver's functions terminate upon an order for his removal, but not merely upon an abatement of the cause in which he is appointed.1 2. Powers in General-a. NATURE OF.-Common-law receivers have no powers except such as are conferred upon them by the order of their appointment, and the course and practice of the court.2 extended, upon an affirmance of the order, the receivers can prosecute the bond given to secure a return to them of the property, without a previous order of the court. 1. In Newman v. Mills, 1 Hog. 291, a receiver continued to collect rent after the abatement of the action in which he was appointed. 2. "A receiver is, as a general rule, a mere custodian, and has no powers except those expressly conferred upon him by the order of his appointment, or by special directions of the court from time to time. His general duty may be said to be to take possession of the estate in the room and place of the owner thereof; and, under the supervision of the court, to manage the property so as to preserve the same, and (if possible) to make it profitable for those who may ultimately be declared the owners thereof. The powers of a receiver are limited. All his actions are under the immediate control of the court, and in order to a safe custody of the estate, he must constantly apply to the court for its advice and sanction. Bispham's Eq., $580. In the leading case of Davis v. Gray, 16 Wall. (U. S.) 203, the general powers of a common-law receiver as derived from the order of his appointment are carefully considered. In that case the complainant, a citizen of New York, who had been appointed receiver of the Memphis, El Paso and Pacific Railroad Company, filed a bill in the U. S. circuit court to restrain the governor and commissioner of the land office of the State of Texas from issuing any further patents to third parties for lands reserved to the company. By the terms of his appointment the receiver was authorized "to bring such suits in the name of said company, or in the name of said receiver as he may be advised by counsel to be necessary and proper in the discharge of ‘he duties of his office, and for acquiring, securing, and protecting the assets, franchises and rights of the said company, and of the said receiver, and of securing and protecting the land grant, and land reservation of the said company." Swayne, J., said: "The authority given by the decree is ample. Still, the question arises whether it was competent for him to proceed in his own name instead of the name of the company whose rights he seeks by this bill to assert. A receiver is appointed upon a principle of justice for the benefit of all concerned. Every kind of property of such a nature that, if legal, it might be taken in execution, may, if equitable, be put into his possession. Hence the appointment has been said to be an equitable execution. He is virtually a representative of the court, and of all the parties in interest in the litigation wherein he is appointed. Jeremy's Equity, 249; Davis v. Duke of Marlborough, 2 Swanst. 125; Shakel v. Duke of Marlborough, 4 Madd. 463. He is required to take possession of property as directed, because it is deemed more for the interests of justice that he should do so than that the property should be in the possession of either of the parties in the litigation. Wyatt's Practical Register, 355. He is not appointed for the benefit of either of the parties, but of all concerned. Money or property in his hands is in custodia legis. In re Colvin, 3 Md. Ch. Dec. 278; Delany v. Mansfield, 1 Hog. 234. such power and authority as are given him by the court, and must not exceed the prescribed limits. The Chautauqua Co. Bank v. White, 6 Barb. (N. Y.) 589; Verplanck v. Mercantile Ins. Co., 2 Paige (N. Y.) 452. The court will not allow him to be sued touching the property in his charge, nor for any malfeasance as to the parties, or others, without its consent; nor will it permit his possession to be disturbed by force, nor violence to be offered to his person while in discharge of his official duties. In such cases the court will vindicate its au He has only |
