Tindall v. Westcott

• Decision Date: 23 July 1901
• Citation: 39 S.E. 450,113 Ga. 1114
• Parties: TINDALL. v. WESTCOTT, Sheriff. SAME. v. NISBET, Clerk.
• Court: Georgia Supreme Court

39 S.E. 450

113 Ga. 1114

TINDALL.

v.WESTCOTT, Sheriff.

SAME.

v.NISBET, Clerk.

Supreme Court of Georgia.

July 23, 1901.

MONEY IN CUSTODIA LEGIS—RECEIVER—MISAPPROPRIATION OF FUNDS—CONTEMPT OF COURT — PUNISHMENT — HABEAS CORPUS — POVERTY.

1. A person who has, by the order of a court of competent jurisdiction, been appointed receiver of the property of an insolvent debtor, becomes an executive officer of the court which appointed him, and the property received by him, or the money arising from its sale, is in custodia legis.

2. If a receiver has been directed by the court to deposit a fund arising from the sale of the property of the debtor, in banks, subject to be withdrawn only on his check when the same has been countersigned by the judge presiding in the court which appointed him, and in violation of his duty, and in disregard of the order of the court, the receiver obtains such fund from the banks on checks not countersigned, and appropriates the same to his own use, then, regardless of the question whether or not the bank is liable for such wrongful payment, such receiver is in direct contempt of the court, whose officer he is; and he may be attached and punished for contempt in disregarding the orders of the court, and also for a failure or refusal, when so ordered, to pay into court the fund so misappropriated. (a) A creditor prima facie entitled to participate in the fund so withheld is a proper party to move an attachment against the defaulting receiver, and, in the absence of any such motion, the judge presiding, on information derived from any source, should cause proper inquiry to be made as to the facts, and, if found to be true, take proper steps to compel the return of the money.

3. The high degree of care proper to be exercised in the preservation of funds arising from the seizure of the property of a citizen requires that a receiver intrusted with such a fund should be held to a rigid accountability, and if, on proper order, he fails or refuses to deliver the same, it is the duty of the court to compel him to do so by the use of all lawful means; and, to that end, it is not illegal to adjudge him to be in contempt for such failure, and imprison him, nor to continue such imprisonment, for the continuing contempt in refusing to deliver the money, for such a time as may be necessary to compel its production. (a) After he has been adjudged in contempt and imprisoned for a refusal to deliver the fund, he will not be discharged under a writ of habeas corpus sued out before another judge on the ground that he is unabie, by reason of his poverty, to comply with the order; but it rests in the sound legal discretion of the judge who committed him, or who is presiding in the court which committed him, to determine whether it is or is not in the power of the receiver to restore the fund. (b) Whether a receiver is or is not unable, by proper effort, to restore a fund intrusted to his keeping as an officer of the court, and which he has willfully misappropriated, is, both at common law and under our statute, a question which may be determined by the presiding judge, and is not one which is required to be submitted to a jury.

4. The receiver, in effect having admitted a misappropriation of the fund committed to bis safe-keeping, was, in any event, in contempt, and, without regard to the fact of the disqualification of the presiding judge who passed the order requiring him to pay the fund into court, was subject to be held therefor by the judge who heard the case. Under the facts of this case, as shown by the record, the receiver will not be heard to urge such disqualification.

(Syllabus by the Court.)

Error from superior court, Bibb county; J. S. Candler, Judge in Nisbet Case; J. H. Lumpkin, Judge in Westcott Case.

Action by Robert A. Nisbet against H. C. Tindall. Judgment holding defendant guilty of contempt. Action by H. C. Tindall against G. S. Westcott, sheriff, seeking discharge of plaintiff by habeas corpus. Judgment for respondent, and in both cases Tindall brings error. Cases consolidated, and judgments affirmed.

John P. Ross, for plaintiff in error.

N. E. Harris, C. P. Steed, John I. Hall, O. J. Wimberly, and Anderson & Grace, for defendants in error.

LITTLE, J. There are two cases pending in this court in each of which practically the same principles of law, resting upon the same facts, are involved, and the same person is the plaintiff in error. The first is that of Tindall v. Nisbet, Clerk, in which a judgment rendered by Judge Candler, of the Stone Mountain circuit, holding the plaintiffin error to be in contempt of the superior court of Bibb county, is sought to be reversed. In the second case, which is entitled "Tindall v. Westcott, Sheriff, " the same plaintiff in error seeks to reverse a judgment rendered by Judge J. H. Lumpkin, of the Atlanta circuit, which refuses to discharge the plaintiff in error from the custody of the sheriff of Bibb county under the commitment made by Judge Candler. These two cases were by consent presented together in this court, and the adjudication now made determines each.

After a careful examination of the record, and a consideration of the alleged errors which the faithful and able counsel representing the plaintiff in error insists were committed on the hearing of the cases in the superior court, we are forced to the conclusion that no error was committed by Judge Candler in the rulings made in the contempt case, nor by Judge Lumpkin in the hearing of the writ of habeas corpus, and we affirm the judgment rendered in each of said eases. Many of the rulings made directly by Judge Candler were necessarily passed on by Judge Lumpkin on the hearing had before him. Without passing in detail on the several rulings made by Judge Candler which were not involved in the petition seeking a discharge from the custody of the sheriff, if, indeed, there be any, it is sufficient to say that, in our judgment, no error which entitles plaintiff to another hearing on the proceedings to attach him for contempt, or to set aside the judgment finding him to be in contempt of court, and ordering his imprisonment, was committed. In passing on the several questions raised on the hearing before him, his honor Judge Candler, in rendering his judgment, did not, in detail, elaborate the principles of law upon which his decision was made to rest But, in formulating the judgment by which he refused to discharge the plaintiff in error from the custody of the sheriff, his honor Judge Lumpkin deals at length and in detail with the legal questions involved in the consideration of the case on its merits. And the opinion rendered by this able judge, which we find incorporated in the record, seems to be so decisive of every material question raised, and so clearly and forcibly expresses the view which we entertain of the law relating to these questions, that we incorporate it herein, and adopt it, as satisfactorily establishing the correctness of the conclusions which we have reached, and which are announced in the headnotes to these two cases. The opinion so rendered is as follows:

"In passing upon a proceeding seeking to obtain a discharge from the custody by writ of habeas corpus, it is my general custom simply to order a discharge, or to refuse it and remand the prisoner. But the present case is one of such importance and interest that I feel it to be the duty of the presiding judge to do more than this, and to give some expression of his views on some of the principal points involved. This is indeed an important case. It is important to the prisoner, because it involves his liberty. It is important to the court, because it involves the question whether they can have the assets which they take into their custody preserved, and see that their receivers honestly and faithfully discharge their duties, and properly dispose of property and funds intrusted to their keeping, or whether they cannot; in a word, whether they can control their receivers, or whether their receivers shall control them. It is also of interest to the judges to know whether, after one of them has carefully and patiently considered the conduct of a receiver, and has adjudged him in contempt, another judge of like court will promptly upset his judgment and turn the prisoner loose on a writ of habeas corpus. Of course, if the detention is illegal, the prisoner will be promptly discharged; but if it is a matter of discretion, or of reviewing what the judge who rendered the judgment has done, the second judge should not be overready to interfere. Such appeals should be more naturally addressed to the judge whose judgment is sought to be modified or revoked, or to some other judge with proper jurisdiction, by petition, rather than to another judge by petition for habeas corpus. This case is also of great interest to the public. When creditors or others institute proceedings under which a receiver is appointed, they and the defendants should like to know whether such appointment is a means of preserving and safely keeping the property and funds involved, or whether it is simply a proceeding to take the property of others and turn it over to a receiver for his own use; and whether at the end of the litigation they will get what the court placed in the safe-keeping of its officer, or whether they must be satisfied with the information that the receiver has misappropriated their funds, but that, inasmuch as he says that he has spent them, the court who appointed him is helpless and powerless to compel the restoration or faithfulness and honesty on the part of its appointee. It must present to the mind of the litigant a rather cheerless idea of law and courts if he were told that the court could take his property or money out of his hands and place it in the hands of a receiver for safe-keeping, but could not see that it was safely kept, and that he must be quite content at the end of the case to get nothing, if the receiver should step up...