Buckley v. George

• Decision Date: 19 February 1894
• Citation: 15 So. 46,71 Miss. 580
• Court: Mississippi Supreme Court
• Parties: J. E. BUCKLEY v. W. W. GEORGE ET AL

15 So. 46

71 Miss. 580

J. E. BUCKLEY v. W. W. GEORGE ET AL

Supreme Court of Mississippi

February 19, 1894

FROM the circuit court of Clarke county, HON. S. H. TERRAL, Judge.

The opinion states the case.

Judgment reversed and cause remanded.

Miller & Baskin, for appellant.

As soon as bond was given and the writ of supersedeas issued appellant was entitled to the property. The receivers no longer had the right to retain possession; the decree appointing them was then vacated. Bisbee v. Hall, 3 Ohio 449; Eldridge v. Chambers, 8 B. Monroe (Ky.), 411.

Regardless of appellant's rights, the defendants held possession of her property after the supersedeas was issued, and therefore became trespassers, and liable in damages. In addition to the above authorities, we cite Walker v. McDowell, 4 Smed. &amp M., 118; Parker v. Dean, 45 Miss. 408; 9 Wis 364, 395; 3 Baxter (Tenn.), 226; State v. Johnson, 13 Fla. 33.

Hamm, Witherspoon & Witherspoon, for appellees.

1. A suit cannot be maintained against a receiver of the chancery court without its permission. This is sufficient to defeat the suit, unless the subsequent discharge of the receivers changes the rule. As to the necessity of obtaining leave to sue, see Beach on Receivers, 653, 654, 655; High on Receivers, 30, 140, 254 et seq.; Barton v. Barbour, 104 U.S. 126.

2. The supersedeas was void for want of authority to grant it. Section 2311, code 1880, confers upon a chancellor granting an appeal from an interlocutory order the exclusive jurisdiction to determine whether the appeal shall operate as a supersedeas. The only power of the supreme court judges to grant a supersedeas in cases of appeals from interlocutory decrees is where the chancellor has refused the appeal. Code 1880, § 1404. Here the appeal was granted, and not refused by the chancellor, and the judge of the supreme court could not reverse his determination as to the supersedeas. The general power of a supreme court judge to grant a supersedeas does not apply to the case of an appeal from an interlocutory order, because jurisdiction as to this is especially conferred upon the chancellor.

If a supreme court judge can set aside the determination of the chancellor as to this, then any circuit judge or any other chancellor could do the same. That a supreme judge, in granting a supersedeas, is only acting as a chancellor, was expressly held in Hill v. Robertson, 23 Miss. 306.

3. Even if the supersedeas was properly granted, it did not give appellant the right of possession. A supersedeas does not annul what has been done, but only stays further proceedings until the matter can be reviewed on appeal. Bank v. Calvit, 3 Smed. & M., 143; Montgomery v. McGimpsey, 7 Ib., 557; 2 Freeman on Judgments, § 382; 38 Am. Dec., 739; 41 Ib., 625, note; 39 Ill. 301; Board v. Gorman, 19 Wall., 661; 93 U.S. 86; Foster v. Kansas, 112 Ib., 201.

When an appeal is perfected and supersedeas bond effected, the jurisdiction of the court below ceases, and no motion can be entertained therein pending appeal. 1 Am. & Eng. Enc. L., 623, citing 37 Miss. 172.

Opposite counsel rely upon State v. Johnson, 13 Fla. 33, which was evidently decided under a local statute. It does not state the general rule. This decision is referred to in High on Injunctions, p. 27 et seq., and the author refers to it as a decision based upon a statute. It is also referred to in Beach on Receivers, p. 41 et seq., and treated as a decision on a statute.

4. If, before the receivers were placed in possession, the order appointing them had been appealed with a supersedeas, the possession of the property would have remained with appellant. But before the so-called supersedeas was granted or issued, the receivers had reduced the property to possession. It was then in the custody of the law, and the supersedeas could not change the possession. High on Receivers, 136.

Even if the supersedeas was legal, and its effect was to entitle appellant to the possession of the property, it does not follow that the receivers are liable in damages for a refusal to recognize that right. The position of a receiver would be perilous, indeed, if he were thus liable. He would be under the necessity of deciding, at his peril, the rights of different claimants. A receiver acts for the court; and if property taken by him belongs to one not a party to the suit, such person cannot take it from him by replevin; nor could he surrender it without permission of the court.

OPINION

COOPER, J.

This is an action at law by appellant to recover from appellees damages for injuries sustained by her under the following circumstances: On the eighteenth day of January, A. D. 1892, Putnam, Baldwin & Co. and others, exhibited their bill against the appellant and others, and by an order of the chancellor then made in vacation in said cause, the appellees were appointed receivers of the appellant's estate, consisting of a stock of goods of the value of $ 6,000, of notes, book accounts and other rights in action of the value of $ 20,000, and of her lands located in Clarke, Jasper and other counties in this state of the value of $ 30,000. On the day of their appointment, the appellees gave bond as receivers and took possession of said estate. On the same day the appellant applied to the chancellor for an appeal, to operate as a supersedeas, of the order appointing the receivers, and the chancellor granted the appeal, but refused to order the supersedeas. Upon the refusal of the chancellor to grant the supersedeas, the appellant presented her petition to the chief justice of this court, who made an order for the issuance of the writ of supersedeas upon appellant's entering into bond in the penalty of twenty thousand dollars, which bond was executed by her, and was approved by the proper officer, who, thereupon, issued the writ of supersedeas as required by the fiat, which writ was, on the twenty-fifth day of January, 1892, duly executed upon the appellees. The appellant, thereupon, demanded possession of all her estate from the appellees, which was refused by them, and they continued in possession thereof until the twenty-third day of April, 1892. It is alleged in the declaration that, on the day of , 1892, the order of the chancellor appointing the receivers was reversed by the supreme court, and the receivers discharged. The declaration avers that by reason of the defendants withholding possession of her property from the twenty-fifth day of January, the day when the writ of supersedeas was served upon them, to the twenty-third day of April, when possession was restored to her, she has been greatly damaged; that the goods in the possession of the receivers were such as were usually kept in country stores, and depreciated in value during that time fifteen hundred dollars; that her business was broken up, and her credit greatly injured by her store being so long closed, and that during said period many of the claims due to her became barred by limitation, or otherwise impaired in value. Other injuries are specifically set forth in the declaration as having resulted from the act of the defendants in withholding from the plaintiff the possession of the property after the service of the writ of supersedeas.

The defendants demurred to the declaration, and assigned thirty-four special causes of demurrer. The demurrer was sustained, and the suit dismissed, and the plaintiff appeals. We shall notice specially only a few of the numerous causes of demurrer. All have been considered, but many of them are disposed of by the statute which provides that "a pleading shall not be deemed insufficient for any defect which could heretofore be objected to only by special demurrer." Code 1892, § 703.

It is contended by the counsel for appellees (1) that the defendants, being receivers of the chancery court, could not be sued without the permission of that court; (2) that the chancellor having granted an appeal from the order appointing the receivers, and having refused to grant a supersedeas thereof, it was not competent for a judge of the supreme court to thereafter grant the writ; (3) that if the supersedeas was lawfully granted, its effect was to preserve the status existing at the time of its service, and, since the defendants had then taken possession of the property under their appointment as receivers, it was their duty to retain it until the order or decree by which they were appointed should be vacated.

The first and third of these propositions may be examined together, for they are both determinable by the conclusion which may be reached as to the effect of the writ of supersedeas. Before considering this question, we will dispose of the objection that it was not within the power of one of the judges of this court to grant a writ of supersedeas after it, had been refused by the chancellor.

By § 2311, code 1880, it is provided that "an appeal may be granted by the chancellor, in term-time or vacation from any interlocutory order or decree whereby money is required to be paid or the possession of property to be changed, or where he may think proper in order to settle the principles of the cause or to avoid expense and delay; but such appeal shall be applied for within ten days after the date of the order or decree complained of, and bond shall be given as in other cases, and the chancellor shall determine whether such appeal...