Rea v. Stinson

Citation164 So. 588,174 Miss. 340
Decision Date09 December 1935
Docket Number31973
CourtMississippi Supreme Court
PartiesREA et al. v. STINSON et al

Division B

1 RECEIVERS.

Receiver appointed by judicial authority in absence of statute cannot be sued without leave of court which appointed him.

2 COURTS.

Chancery court of district other than one in which receivership was pending held without jurisdiction to enjoin suit to foreclose deed of trust brought by receiver without consent of court appointing receiver, notwithstanding that bill for injunction was filed under Mortgage Moratorium Act (Laws 1934, chapter 247).

HON. J L. WILLIAMS, Chancellor.

APPEAL from the chancery court of Washington county HON. J. L. WILLIAMS, Chancellor.

Suit by Mrs. J. E. Stinson and others against W. O. Rea, receiver, and others. From an adverse judgment, the defendants appeal. Reversed and dismissed.

Reversed and dismissed.

Sullivan & Sullivan, of Hattiesburg, for appellants.

The bill does not allege that the consent of the chancery court of the First judicial district of Hinds county, Mis sissippi, the court having jurisdiction of the receivership, was had, permitting said bill to be filed in the chancery court of Washington county, Mississippi.

Receiver appointed by judicial authority, in the absence of statute to the contrary, cannot be sued without leave of court which appointed him.

Rea v. O'Bannon, 158 So. 916; Sullivan v. Hughes et al., 161 So. 316; Sullivan v. Calvin, 161 So. 677; Rea v. Turner, 174 Miss. 13.

Lamar Watson, of Greenville, for appellees.

The situs of the property in question is in Washington county, Mississippi; the situs of the debtors is in Washington county, Mississippi; the situs of the contract is in Washington county, Mississippi, it having been executed there.

Under the general statute, the chancellor of the district which has the situs of the property, the contract and the residence of the parties debtor, has the proper jurisdiction of the matter in question.

Section 363, Code of 1930.

Under this statute, section 11, Moratorium Statute of Mississippi 1934, I contend that the jurisdiction which the chancellor of Hinds county had over the receivership and all of his operations thereunder were by the Moratorium Act suspended; and that by such suspension that court was deprived of any further rights or jurisdiction in this matter until the Act of 1934, the Moratorium Act, terminated.

I contend and most earnestly urge that Chancellor Williams, of the Washington county jurisdiction, has full and complete jurisdiction in this case and that the demurrer was properly overruled.

My contention is that any laws and all operations under any laws which are inconsistent with the provisions of the Moratorium Act have been stripped of all powers of operation and are a nullity; and that the chancellor of Hinds county, Mississippi, could not under this act give any permission to bring suits in other chancery jurisdictions, and if he did, it would be a nullity.

OPINION

Ethridge, P. J.

On September 18, 1930, Mrs. Stinson and others, appellees here borrowed five hundred dollars from the Building & Loan Association of Jackson, Mississippi, and gave their promissory note therefor payable in installments, and secured the payment thereof by a deed of trust of even date on certain property located in Arcola, Mississippi. Thereafter the Jackson Building & Loan Association was placed in receivership by the chancery court of the First district of Hinds county, Mississippi, and its affairs are being administered and controlled by said court. On April 22, 1935, the appellees filed a bill of complaint in the chancery court of Washington county, seeking an injunction against the foreclosure proceedings begun by the trustee under the direction of the receiver. The bill was filed under the Moratorium Act, chapter 247, Laws of 1934, and, after setting out the facts as stated above, it was alleged that the complainants had paid each and every monthly installment up to June 5, 1933, when they were unable to do so, not having any work to do, and that there was a balance due of two hundred seventy-six dollars and twenty-seven cents. It was further alleged that the property, at present, is worth two thousand dollars, and that the owners had made every effort to refinance the indebtedness through various agencies, and finally through the Home Owners Loan Corporation, and said property had been appraised, but on account of certain repairs the loan had been held up and it is still pending, and if given sufficient time, complainants, appellees here, will be able to refinance same. The prayer for the injunction was granted without bond. The appellants demurred to the bill,...

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