First Nat. Bank of Jackson v. United States Fidelity & Guaranty Co.
| Decision Date | 14 March 1932 |
| Docket Number | 29885 |
| Citation | 162 Miss. 807,140 So. 229 |
| Parties | FIRST NAT. BANK OF JACKSON v. UNITED STATES FIDELITY & GUARANTY CO. et al |
| Court | Mississippi Supreme Court |
1 RECEIVERS.
Where order appointing receiver is revoked because he was wrongfully appointed, bond is breached.
2 RECEIVERS.
Final decree discharging receiver because he was wrongfully appointed is "revocation of appointment" as regards breach of bond.
3 RECEIVERS.
That supreme court holding that receiver was wrongfully appointed also held court properly authorized receiver to lease plantations involved did not relieve principal and surety on receiver's bond for liability for wrongful appointment.
HON. V. J. STRICKER, Chancellor.
APPEAL from chancery court of Hinds county, HON. V. J. STRICKER, Chancellor.
Suit by the First National Bank of Jackson against the United States Fidelity & Guaranty Company and another. From a decree dismissing the bill, complainant appeals. Reversed and remanded.
Reversed and remanded.
Fulton Thompson and Chalmers Alexander, both of Jackson, for appellant.
Before any receiver shall be appointed without notice, the complainant who asks for the appointment must execute bond payable to the adverse party, conditioned to pay all damages that may be sustained by the appointment of such receiver in case the appointment be revoked; and the statute provides the method and jurisdiction for suit on the bond.
Upon decree discharging receiver, the complainant is liable on the bond for all damages sustained by appointment.
Pearson v. Kendricks, 74 Miss. 235, 21. So. 37.
Nothing can be found on the face of our bill to show that, after reversal, the bank became concluded by the subsequent proceedings had in the cause.
The dismissal of the complainant's bill shows the discharge ipso facto of the receiver; for there can continue no receiver when bill is dismissed.
Engleberg v. Tonkel, 140 Miss. 513.
The complaint is not against the proper or improper action of a court, receiver, but irrespective of whether be functions better even than the ousted defendant may do, the complaint must be against the complainant who had the defendant ousted.
Pearson v. Kendricks, 74 Miss. 235, 240.
The party who resorts to the hasty ex parte proceeding to procure the appointment of a receiver, shall not escape liability as formerly, for damages inflicted upon the opposing party in case his action should be held to be unauthorized by the facts and wrong, but must guarantee indemnity by the bond there described.
Pearson v. Kendricks, 74 Miss. 240.
When a case has been reversed and remanded without final direction the decree of the supreme court operates to vacate and annul the final decree appealed from and to restore the parties to the exact position on the record that they severally occupied at the time of the rendition of the decree in the trial court.
Griffith's Chancery Practice, sec. 696; McCorkle v. Brown, 171 Miss. 179; Jackson v. Lemler, 83 Miss. 37; Ogden v. Harrison, 56 Miss. 743.
On reversal the law announced on the appeal by the appellate court is the law of the case, and must govern the litigants and the lower court in the further progress of the case, whether right or wrong, and is binding on the lower court.
State v. Woodruff, 81 Miss. 458; Smith v. Elder, 22 Miss. 100; N.Y. Life Ins. Co. v. McIntosh, 46 So. 401; Green v. McDonald, 21, Miss. 452; Griffith's Chancery, Sec. 698.
Where an appointment, of a receiver was wrongfully done, and appeal has been taken and reversal had, the right of action has been likened to that accruing on the dissolution of an injunction bond.
23 R. C. L., p. 45, sec. 46; Ann. Cas. 1915D, 1041; Ann. Cas. 1915D, 1,040.
The use of the words removal and discharge are synonymous.
Pearson v. Kendrick, 74 Miss. 240.
Franklin, Easterling & Rosenthal, of Jackson, for appellees.
Taking sections 10, and 11 of the bill together, said bill shows on its face that the chancery court on remand of said cause not only declined to revoke the appointment of the receiver, but, that the said receiver, under the sanction of said court, was retained until the final disposition of the cause.
While the court erred in appointing the receiver, its order so doing was not void, and until it was revoked it should have been obeyed by all parties affected thereby, so that, instead of being allowed damages because of the making of the order appointing the receiver the party should have been punished for disobeying it.
Houston v. King, 119 Miss. 347, 80 So. 779.
The rule is well settled that a judgment which is merely erroneous and voidable cannot be attacked collaterally.
Smith v. Bradley, 6 S. & M. 179; Work v. Harper, 24 Miss. 517; Wall v. Wall, 28 Miss. 409; Parisot v. Green, 46 Miss. 747; Moore v. Ware, 51 Miss. 206; A. & V. Ry. Co. v. Bolling, 69 Miss. 255, 13 So. 844.
Sureties are liable only in accordance with their undertaking.
Cahn v. Wright, 119 Miss. 345, 78 So. 292; Shackelford v. Smith, 61 Miss. 7.
The bill of complaint in this case, shows on its face that the order appointing the receiver without notice was never revoked by the court and this was the condition of the bond.
The reversal of the decree by the former appeal did not deprive the chancery court of power over the proceedings.
Wailes v. Johnson, 25 Miss. 421; Hansard v. Gray, 46 Miss. 75; Haines v. Haines, 54 So. 433.
There is a clear distinction between vacating the appointment of a receiver and his removal or discharge, although these words are frequently used indiscriminately by the courts as synonymous. To vacate the appointment is to set aside the order of appointment because improvidently granted. The term remove as applied to the receiver, means simply a change in the personnel of the receivership, which continues unaffected. The discharge of a receiver relates to the termination of the receivership, and is asked and ordered for the reason that, because of the state of the suit, there is no longer any necessity for continuing the receiver. The failure of plaintiffs to object to the order and, in the event the objection was overruled, to prosecute their appeal, as provided by the statute, must be held to be an acquiescence by them in it, so as to prevent their questioning its propriety upon final hearing of the cause.
Pagett v. Brooks, 37 So. 263; Joslin v. Williams, 6 Nebr. 594, 107 N.W. 837, 112 N.W. 343; Haverly v. Elliott, 39 Nebr. 201, 57 N.W. 1010.
Under our statute the bond given for the appointment of receiver without notice must be conditioned "to pay all damages that may be sustained by the appointment of such receiver in case the appointment of the receiver be revoked, which was practically the result of the one construed in Pagett v. Brooks, 37 So. 263.
In the absence of a showing to the contrary, it will be presumed on this appeal in a collateral attack, that the chancery court, was fully warranted in refusing to revoke the appointment of a, receiver and in retaining the services of the receiver until the end of the litigation.
The First National Bank of Jackson filed its bill in this case against the United States Fidelity & Guaranty Company, J. A. Logue, and his wife, Mrs. Julia C. Logue, and others, to recover damages on a receiver's bond given for the appointment of the receiver, without notice, in the case of J. A. Logue et al. v. J. B. Stirling and the First National Rank and others, pending at the time in the chancery court in the First district of Hinds county. Appellees demurred to the bill, which demurrer was sustained by the court and the bill dismissed. From that decree appellant prosecutes this appeal.
In the cause of J. A. Logue and...
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