Kilgore v. Hair

• Citation: 19 S.C. 486
• Parties: KILGORE v. HAIR.
• Decision Date: 30 June 1883
• Court: United States State Supreme Court of South Carolina

19 S.C. 486

KILGORE

v.HAIR.

Supreme Court of South Carolina.

Jul. 3d, 1883.

1. A receiver may be appointed at chambers.

2. The master of the court should not be appointed a receiver in any case.

Before WITHERSPOON, J., Newberry, February, 1883.

Action by A. J. Kilgore against J. S. Hair, commenced in February, 1883. The opinion states the case.

Mr. Y. J. Pope, for appellant.

Messrs. Moorman & Simkins, contra.

The opinion of the court was delivered by

MR. CHIEF JUSTICE SIMPSON.

This is an action to recover possession of a tract of land situate in Newberry county, as well as damages for its detention. A judgment enjoining the defendant from any further use or occupancy of the land, and for the appointment of a receiver, is also demanded.

The trial of the cause upon its merit has not been had, but an order has been obtained at chambers from Judge Witherspoon, after notice that an application would be made to him “for the appointment of a receiver to take possession of the property described, and to manage the same according to law,” directing Silas Johnstone, the master for Newberry county, to rent the land for the present year to the highest bidder for cash, and in case that the matters in dispute shall not be finally adjudicated by the end of this year, then to rent the land for the year 1884 upon the same terms; and further, that the defendant, J. S. Hair, or any other person that may be in possession at the time of renting, be required to vacate said premises and deliver the possession thereof to whomsoever may rent them from the master, as provided therein.

The appeal arises upon this order, the defendant having excepted as follows: 1. “Because said order was granted at chambers without the consent and against the protest of the said John S. Hair. 2. Because the said order was granted at chambers upon a notice to show cause why a receiver should not be appointed to take charge of the property in controversy. 3. Because said order was contrary to law. 4. Because the plaintiff was not entitled to said order from the presiding judge under the pleadings in this action.”

We do not propose to inquire into or express any opinion as to the merits of the controversy, or as to rights of the parties respectively to the land in dispute. The order of the Circuit judge appointing the receiver is the only matter before us, and the questions raised are, first, whether such motion could be heard at chambers; and, second, whether the master should have been appointed.

The first may be dismissed by a simple reference to section 265 of the code, which provides that a receiver “may be appointed by a judge of the Circuit Court either in or out of court;” so that if there was nothing else in the way except this objection, the order below should be affirmed without delay.

The more serious matter, however, is the fact that the master has been appointed. We must assume that the purpose of the order was to appoint the master a receiver. The order was based on a notice that an application would be made for the appointment of a receiver, and it was issued in response to that application. Assuming, then, this to be the true interpretation of the order, we desire to take this occasion to say, that we cannot sanction the appointment of masters as receivers in such cases as this, nor in fact should a master be appointed in any case.

As to the one appointed here, the gentleman who so worthily fills the office of...