Joseph Dry Goods Co. v. Hecht, 1,210.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 120 F. 760
• Docket Number: 1,210.
• Parties: JOSEPH DRY GOODS CO. et al. v. HECHT.
• Decision Date: 17 February 1903

120 F. 760

JOSEPH DRY GOODS CO. et al.
v.
HECHT.

No. 1,210.

United States Court of Appeals, Fifth Circuit.

February 17, 1903

[120 F. 761]

C. A. Turner and Geo. S. Jones (Isaac Hardeman and B. M. Davis, on the brief), for appellants.

John I. Hall and Olin J. Wimberly, for appellee.

John P. Ross, for receiver.

This is a suit in equity, brought by Robert Hecht, the appellee, against the appellants and J. R. Fried. The bill appears in the record, and contains 21 sections, embracing 14 closely printed pages. It is not deemed necessary to give a summary of the contents of the bill, as the averments, so far as material to the decision to be made, will appear in the opinion. The purpose of the bill was to collect a debt, enforce the specific performance of a contract, and secure the issuance of an injunction and the appointment of a receiver.

Before PARDEE and SHELBY, Circuit Judges, and BOARMAN, District Judge.

SHELBY, Circuit Judge.

On October 22, 1902, the bill having been presented to one of the judges of the Circuit Court, he made an order, without notice to the defendants, appointing a temporary receiver, who was directed to demand and take possession of the moneys, books, papers, and other property of the Joseph Dry Goods Company. The receiver took possession as directed by the order of the court. The defendants were required to show cause on October 31st why a permanent receiver should not be appointed. The dry goods company, sworn petition, applied to the judge who made the order, seeking a revocation or modification of the order. This application was set down for hearing on the 24th of October, 1902, and notice given plaintiff's attorneys. The attorneys filed a writing addressed to the judge, stating that other professional engagements prevented their presence before the court, and giving grounds of objection to the revocation of the order appointing the receiver. The following order was entered October 24, 1902:

'Upon hearing the application of the Joseph Dry Goods Company for an order to dissolve or modify the order granted on the 22nd day of the present month appointing Walter J. Grace Esq., temporary receiver, and it appearing to the court that said temporary receiver, from his statement in open court, has in hand, of the property of said Joseph Dry Goods Company, six thousand five hundred and sixty and 49/100 dollars, besides a large amount of personal property, consisting of a stock of merchandise, choses in action, and the books of said Joseph Dry Goods Company, it is, after hearing and considering said application, and the argument of counsel in behalf thereof, counsel for the [120 F. 762] complainant being absent in attendance upon Pulaski superior court, and not heard except in a letter, and written by them in resistance to said application, it is ordered that the application to give bond and have said order dissolved is refused and denied, but said order of Oct. 22nd inst. is so far modified as that the said Walter J. Grace, Esq., shall retain in his hands the cash received by him except that he shall pay therefrom a check given by the said Joseph Dry Goods Company to R. N. Lamar for sixty-five dollars and seventy cents, insurance on said property, and shall pay to A. Damo one dollar as watchman for guarding said property last night. The stock of merchandise, notes, and accounts, choses in action, and other property of said Joseph Dry Goods Company, and the books in the hands of said temporary receiver, the said Walter J. Grace, Esq., shall at once return to said Joseph Dry Goods Company, and said defendants are restrained from making any changes in the books or records of said company, or either of the defendants.'

The defendants, the company and Joseph, applied to one of the judges of the Circuit Court for an order allowing an appeal from the two decrees-- the one of October 22d appointing the receiver, and the one of October 24th refusing to revoke, but modifying, the first decree-- and the appeal was allowed. It is assigned here, with proper specifications, that the court below erred in the two decrees rendered.

1. The appellee, plaintiff below, moves to dismiss the appeal because the decrees appealed from were rendered ex parte and not 'upon a hearing in equity,' and that motion raises the first question to be considered.

The statute to be considered, as first passed in 1891, allowed appeals from interlocutory orders granting or continuing an injunction 'upon a hearing in equity.' Judiciary Act March 3, 1891, Sec. 7, 26 Stat. 826, 828 (U.S. Comp. St. 1901, pp. 546, 550). At that time there had been in force for many years equity rule 55, which provides (that special injunctions shall be grantable only upon due notice to the other party by the court in term or by a judge thereof in vacation after a hearing which may be ex parte if the adverse party does not appear at the time and place ordered. ' There was also in force at that time, and now, a statute enacted in 1872, which, when notice was given of a motion for an injunction, conferred on the circuit or district court, or a judge thereof, power to grant an order restraining the act sought to be enjoined until a decision was had on the motion. Rev. St. Sec. 718 (U.S. Comp. St. 1901, p. 580). Further as to issuing injunctions out of the circuit court, see Rev. St. Sec. 719 (U.S. Comp. St. 1901, p. 581). It may be that the Congress, in using the words 'upon a hearing in equity,' had in view equity rule 55 and this statute allowing the temporary restraining order. The temporary restraining order is, in effect, an injunction intended to operate till the 'hearing' on the question of granting the injunction, notice of the motion to grant the same having been served contemporaneously with the service of the order. The injunction being granted after such notice would be 'upon a hearing in equity,' within the meaning of the statute. The statute as first enacted did not allow an appeal from the appointment of a receiver. It related to injunctions only. It was construed not to allow an appeal from an interlocutory order appointing a receiver, even in a case where the order required the defendant to turn over property to a receiver, the order [120 F. 763] being in the nature of a mandatory injunction. Highland Ave. R.R. v. Equipment Co., 168 U.S. 627, 18 Sup.Ct. 240, 42 L.Ed. 605...