Jones v. Schall

• Decision Date: 26 January 1881
• Citation: 45 Mich. 379,8 N.W. 68
• Court: Michigan Supreme Court
• Parties: JONES and another v. SCHALL and another.

8 N.W. 68

45 Mich. 379

JONES and another v. SCHALL and another.

Supreme Court of Michigan

January 26, 1881

Appointment of a receiver in this case, made before a bill was filed or any suit in fact commenced, held absolutely void.

Appeal from Cass.

Russell R. Pealer, for complainants.

MARSTON. C.J.

The complainants on the fifteenth of November, 1879, filed their bill of complaint in the circuit court for the county of Cass in chancery, alleging therein that each had on the eleventh day of October, 1879, recovered judgments against the defendants Lafayette W. and Peter Schall for certain specified sums; that each of said causes had been commenced by attachment and levies made thereunder upon certain personal property of said defendant's which is particularly described. It was also alleged that executions had been issued upon said judgments and said property levied upon by virtue thereof, but it was conceded on the argument that no such levy had or has been made.

It is further alleged that Lafayette W. Schall executed and delivered a chattel mortgage on said personal property, March 7, 1879, to his wife, also a similar mortgage on said property, May 8, 1879, and that Peter Schall had given to his wife and one Precilla McEntefer March 7 1879, a chattel mortgage on said property; also one dated May 8, 1879; also a mortgage by Lafayette to his brother Elias. It is alleged that all these instruments, except the last were given for the express purpose of cheating and defrauding complainants and to hinder and delay them in collection of their respective claims. Certain other facts were alleged, and amongst them that a forced sale of such property subject to such encumbrances, would not realize any sum to apply on their claims, and they prayed for the appointment of a receiver to take charge of such property. On the thirteenth day of November a receiver was appointed "to take immediate charge of all the personal property of the said defendants Lafayette W. Schall and Peter Schall except such as is exempt from execution by law, and to sell and dispose of the same for cash to the best possible advantage, in any mode or manner that may seem to him to be most advantageous to all the parties concerned, and after the sale of such property to bring the moneys arising therefrom into this court, and deposit the same with the register of this court, to be held by him until it shall be determined by this court by...