Fredenheim v. Rohr 1

• Decision Date: 30 April 1891
• Citation: 13 S.E. 193,87 Va. 764
• Parties: Fredenheim et al. v. Rohr et al.1
• Court: Virginia Supreme Court

13 S.E. 193

87 Va. 764

Fredenheim et al.

v.Rohr et al.¹

Supreme Court of Appeals of Virginia.

April 30, 1891.

Courts of Appeals—Jurisdiction — Injunction —Appointment of Receiver.

Code Va. § 3438, provides that when a circuit or corporation court or judge thereof shall refuse to award an injunction, a copy of the proceedings in court, and the original papers presented to the judge in vacation, with his order of refusal, may be presented to a judge of the court of appeals, who may thereupon award an injunction. In an action to set aside a deed of trust an order was granted restraining the trustee from selling the goods therein conveyed. Upon the trial the order was dissolved, and the prayer for the appointment of a receiver denied. Upon the following day a judge of this court, upon the original bill, and without notice to defendants, granted the injunction and appointment of a receiver. After the entry of this order, and in the absence of counsel for defendants, a judgment of the lower court granted an order directing the sheriff to put the receiver in possession of the property. Held, that the statute confers no authority upon a judge of the court of appeals to reinstate an injunction order that has been dissolved on the merits in the lower court, and both orders are void. Laot and Richardson, JJ., dissenting.

Appeal from chancery court of Richmond.

Jos. Christian and E. Y. Cannon, for appellants.

Pollard & Sands, for appellees.

Fauntleroy, J. The petition of M. S. Fredenheim and Herman Rosenberg, trus tee in a deed of trust executed by the said M. S. Fredenheim on the 27th day of April, 1889, complains of an order of thechancery court of thecity of Richmond, entered on the 15th day of May, 1889, and the order of the judge of that court, entered on the 21st day of. May, 1889, in a chancery suit pending in 'said court, in which Nathan Rohr, Carl Callinan, and William H. Robertson, and others, creditors of M. S. Fredenheim, are complainants and M. S. Fredenheim and others are defendants. The bill charges that Margaret S. Fredenheim, being indebted to the complainants, with intent to hinder, delay, and defraud them and her other creditors, on the 27th of April, 1S89, made a deed of conveyance of all her stock in trade to one H. Rosenberg, which deed was duly recorded in the clerk's office of the chancery court of the city of Richmond, and an official copy thereof is filed as an exhibit with the bill. The prayer of the bill, after calling for answers from the defendants, is that "the said H. Rosenberg, trustee as aforesaiu, Margaret S. Fredenheim, and A. Fredenheim, her husband, acting as agent for the said trustee, may be enjoined and restrained from managing, controlling, or selling the stock of goods lately owned by the said M. S. Fredenheim, at her store at No. 113 East "Broad street, Richmond, Va.; that a receiver may be forthwith appointed by the court to take charge of the said stock of goods and the other property conveyed by the said deed of April 27, 1889, and, after due advertisement, sell the same upon such terms as may be prescribed by the court, and to proceed to collect, without delay, the notes and other choses in action conveyed by the said deed; that the decree of the court may be entered declaring null and void the said deed of April 27, 1889, and directing the payment of the debts due your orator from the proceeds realized from the sale, etc.; and that such surplus as may remain may be administered under and by direction of the court, through a receiver to be appointed as before asked, " etc. This bill, charging fraud and collusion of fraud, and praying for an injunction, and to have the deed of trust of April 27, 1889, vacated for fraud, and for the appointment of a receiver, was presented to Judge Fitz-hugh in the chancery court of Richmond city on the 7tn day of May, 1889, who on that day granted an injunction according to the prayer of the bill, but declared in the order that he deemed it proper that the defendants should have reasonable notice of the time and place of moving for the appointment of receiver as prayed for in the bill, and an opportunity to move to dissolve the injunction; and this accordingly took place. After this injunction had become effectual, the defendants filed their answers, denying and putting in issue all the material allegations of the bili. The case came on to be heard on the 14th day of May, 1889, upon the bill and answers, and sundry affidavits and counter-afiidavits, upon due notice and motion to dissolve, before Judge Wellfoiui, sitting in the chancery court in the absence o! Judge Fitzhugh. who had left the city, and was fully heard upon the arguments of counsel upon the motion to dissolve the injunction and to appoint a receiver, and for no other purpose; whereupon a decree was entered dissolving the injunction which had been awarded by Judge Fitzhugh on the 7th of May, 18S9, and expressly denying the prayer of the bill for the appointment of a receiver, but requiring the trustee, H. Rosenberg, to execute a bond, with approved security, in the penalty of $10,000, for the security of the fund, and for the faithful discharge of his trust, which bond was accordingly promptly executed by the said trustee. If the complainants in the bill were dissatisfied or aggrieved by this order of the chancellor dissolving the injunction and denying the prayer of the bill for the appointment of a receiver, their plain remedy, as prescribed by section 3454, Code 1887, was by appeal or by application to the chancellor for a rehearing and reinstatement of the Injunction upon notice to the defendants, and if that had been denied they could have appealed from that denial; but they neither appealed from the order of dissolution, nor did they apply for a rehearing or reinstatement, but chose to present the very same bill, without any alteration or new matter, and without notice to the defendants, to a judge of the court of appeals, who, by his order of the 15th of May, 1889, addressed to the clerk of the chancery court of the city of Richmond, awarded the injunction according to the prayer of the bill, which had been dissolved the day before by the chancellor of that court upon full hearing and argument on the merits; and, on the motion of the complainants, and without notice to the defendants, and in their absence, and in the absence of their counsel, appointed one S. L. Bloomberg, as "a receiver of the chancery court of the city of Richmond, to take into his possession all of the property mentioned in the said deed of the 27th of April, 1889, and he is directed to take an inventory as to other stock of goods at No. 113 East Broad street, and proceed to sell the same for cash, as provided by the terms of the said deed, for and during the period of sixty days from the date of said deed." After this order had been given and duly entered in the order-book of the chancery court of the city of Richmond, the complainant's counsel proceeded to the county of...