Taylor v. Mason
| Decision Date | 16 June 1932 |
| Citation | 158 Va. 870 |
| Court | Virginia Supreme Court |
| Parties | GEORGE HOPE TAYLOR, RECEIVER FOR NORFOLK RESIDENCE CORPORATION v. ANNIE K. MASON. |
Present, Holt, Epes, Hudgins, Gregory and Browning, JJ.
1. BANKRUPTCY AND INSOLVENCY — Effect of Adjudication in Bankruptcy upon Proceedings in State Court — Receiver of State Court — Case at Bar. — The instant case was an action by plaintiff against a State receiver of a corporation for personal injuries. Before the present action was brought the corporation had been adjudicated a bankrupt. There was no allegation or proof of any personal misconduct or negligence on the part of defendant. The liability of defendant, if any, was not a personal liability, but a liability in his official capacity. The adjudication of the corporation a bankrupt operated to suspend the further administration of the bankrupt's estate in the State court, and to transfer the further administration of the bankrupt's estate to the bankruptcy court.
Held: That it was error for the court to strike out a special plea of defendant that he was discharged as receiver by the adjudication of the corporation a bankrupt, and to refuse to dismiss the action against him.
2. BANKRUPTCY AND INSOLVENCY — Adjudication in Bankruptcy — Effect of Adjudication upon Proceedings in State Court — Receiver — Comity. — While under the rules of comity the State court may, before it transfers the assets of a bankrupt in its hands to the bankruptcy court, settle the accounts of its receiver and close its connection with the matter; yet in doing so it should scrupulously regard the rule of comity under which it is acting, and limit its action to the settlement of its receiver's account for transactions already had.
3. BANKRUPTCY AND INSOLVENCY — Adjudication in Bankruptcy — Effect of Adjudication upon Proceedings in State Court — Comity. — Necessarily when like proceedings in the State courts are determined by the commencement of proceedings in bankruptcy, care has to be taken to avoid collision in respect of property in possession of the State court. The State court should do its part in avoiding such a collision; and in taking any further steps in relation to the estate, should be careful not to overstep or strain the rule of comity under which it acts.
4. BANKRUPTCY AND INSOLVENCY — Effect of Adjudication in Bankruptcy upon Proceedings in State Court — Receiver of State Court — Case at Bar. — The instant case was an action by plaintiff against a State receiver of a corporation for personal injuries. Before the present action was brought the corporation had been adjudicated a bankrupt. The action was brought to establish a claim against the estate of the corporation which was in the hands of defendant as receiver of the court. If the claim was not provable against the estate in the bankruptcy court, then for the State court to entertain the action, the object of which was to establish the claim as against the estate, would be to violate the principles which underlie the rule of comity upon which the right of the State court to adjudicate further with reference to this estate rests.
5. BANKRUPTCY AND INSOLVENCY — Effect of Adjudication in Bankruptcy upon Proceedings in State Court — Receiver of State Court — Case at Bar. — The instant case was an action by plaintiff against a State receiver of a corporation for personal injuries. Before the present action was brought the corporation had been adjudicated a bankrupt. The action was analogous to a proceeding in rem against the same estate which upon the adjudication of the corporation a bankrupt passed by operation of law to the trustee in bankruptcy. The primary power and authority to administer this estate was transferred by the adjudication from the State court to the bankruptcy court.
6. BANKRUPTCY AND INSOLVENCY — Effect of Adjudication in Bankruptcy upon Proceedings in State Court — Receiver of State Court — Case at Bar. — The instant case was an action by plaintiff against a State receiver of a corporation for personal injuries. Before the present action was brought the corporation had been adjudicated a bankrupt. Counsel for the plaintiff contended that, as the claim was a claim for damages for a tort which had not been reduced to judgment prior to the time the corporation was adjudicated a bankrupt, the claim was neither provable nor dischargeable in bankruptcy, and therefore the adjudication of the corporation a bankrupt did not prevent the bringing of an action on the tort against the State receiver in his official capacity.
Held: That this contention was not well made.
7. ABATEMENT, REVIVAL AND SURVIVAL — Plea by State Receiver that He Was Discharged by an Adjudication of the Corporation a Bankrupt — Section 6105 of the Code of 1919 — Case at Bar. — The instant case was an action by plaintiff against a State receiver of a corporation for personal injuries. Defendant pleaded that the corporation had been adjudged a bankrupt before the present action was instituted, and that the action against him in his official capacity as receiver should be dismissed.
Held: That this was not such a plea as came within the purview of section 6105 of the Code of 1919, relating to the time within which pleas in abatement must be filed.
8. BANKRUPTCY AND INSOLVENCY — Effect of Adjudication in Bankruptcy upon Proceedings in State Court — Receiver of State Court. — The instant case was an action by plaintiff against a State receiver of a corporation for personal injuries. Before the present action was brought the corporation had been adjudicated a bankrupt. When the evidence was examined, otherwise than as on a demurrer to the evidence, it was plain that a verdict of the jury predicated upon a finding that the receiver was negligent and holding that the receiver, in his official capacity as receiver, or the estate in his hands, was liable, was plainly wrong.
Held: That the ends of justice would be best served (section 6365 of the Code of 1919) by the Supreme Court of Appeals entering final judgment for defendant and dismissing the motion for judgment filed by plaintiff.
Error to a judgment of the Circuit Court of the city of Norfolk, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.
The opinion states the case.
C. C. Sharp and John W. Eggleston, for the plaintiff in error.
Rixey & Rixey, for the defendant in error.
This is a tort action brought by Annie K. Mason against George Hope Taylor in his official capacity as receiver for the Norfolk Residence Corporation. The action was brought by a notice of motion for judgment which was served on Taylor on June 23, 1930. The material allegations of the notice, as supplemented by the bill of particulars filed by Mrs. Mason, are as follows:
At the time Mrs. Mason received the injuries for which she sues, Elmhurst Court Apartment was owned by Norfolk Residence Corporation, and was in the possession and control of and being operated by George Hope Taylor, who, on August 10, 1929, had been appointed by the Circuit Court of city of Norfolk as receiver for this corporation, and had duly qualified as such receiver. She was living with her husband in an apartment on the fourth floor of this building, which he was renting from the defendant. On the landing at the top of the stairway leading from the hallway on the third floor to the second floor of this building was a rubber mat. This mat constituted a dangerous trap to one descending the stairway, because (1) it was not properly installed in that its inner edge (the edge away from the stairway) was not fastened down, and (2) the inner edge had become thin, worn, frayed and turned up. On October 9, 1929, as she, in the exercise of reasonable care, approached the top of this stairway and was about to descend the stairs, her foot was caught in or under this mat. This caused her to trip, loss her balance, and fall down the stairway, as the result of which she was severely injured. The catching of her foot in the mat was due to the negligence of Taylor, the receiver, in permitting the mat to be and remain in the defective condition above set forth.
Taylor, the receiver, filed a plea of the general issue and an affidavit denying that he had any control over the building at the time of this accident. He also filed several special pleas, but in the view which we take of this case it is only necessary to consider his Special Plea No. 1.
Special Plea No. 1 was filed by leave of court on October 18, 1930. It alleges that Taylor was appointed and qualified as receiver for Norfolk Residence Corporation on August 10, 1929, that the corportion was adjudicated as bankrupt on December 3, 1929, by the United States District Court for the Eastern District of Virginia, by which Percy S. Stephenson was appointed receiver for the corporation; that Taylor was discharged as receiver of this corporation by the adjudication of the corporation a bankrupt, and that this action was not brought until June 23, 1930; and prays that, therefore, the court will dismiss the action.
The record does not contain a copy of the order of the Circuit Court of city of Norfolk appointing Taylor receiver for Norfolk Residence Corporation; and it does not appear either from the pleadings or the evidence upon whose motion the receiver was appointed, in what cause the order was entered, what was the nature of the proceedings in which the order was entered, when the proceedings were instituted, or what were the terms and provisions of the order.
It may be noted here that it is not alleged or proven that the Circuit Court of city of Norfolk has entered any order discharging Taylor as receiver for Norfolk Residence Corporation; and we understand the plaintiff in error to admit that no such order has been entered.
On the motion of Mrs. Mason the court struck out Special Plea No. 1 and all the other special...
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