Va. v. Wilder

• Decision Date: 17 March 1892
• Court: Virginia Supreme Court
• Parties: Virginia, T. & C. Steel & Iron Co. v. Wilder et al. Wilder et al. v. Kelly, Judge.

14 S.E. 806

88 Va. 942

Virginia, T. & C. Steel & Iron Co.

v.Wilder et al.

Wilder et al.

v.Kelly, Judge.

Supreme Court of Appeals of Virginia.

March 17, 1892.

Effect of Appeal—Stay—Appointment of Receiver.

1. An appeal from an order of an appellate judge appointing a receiver stays all proceedings under such order.

2. Where the claims on which a petitioner asks for a receiver are open book-accounts, small in comparison to the property sought to bo sequestered, and unascertained, and which defendants offer to secure by sufficient bond in case such claims are subsequently established, a receiver should not be appointed.

LAcY and Richardson, JJ., dissenting.

From an order by an appellate judge in an action by James Wilder and others against the Virginia, Tennessee & Carolina Steel & Iron Company in favor of plaintiff, appointing a receiver for defendant's property, defendant appeals. Reversed. Also an application for mandamus by James Wilder and others against John A. Kelly, judge, requiring such judge to en force the order issued by the appellate judge in the former case. Mandamus proceedings dismissed.

J. B. Richmond, Alexander Hamilton, R. B. Davis, Wm. J. Robertson, R. A. Ayers, John C. Haskell, J. P. Sheftey, and White & Buchanan, for appellants.

Geo. H. Towle, Blair & Blair, Fulkerson, Page & Hurt A. M. Dickinson, A. H. Blanchard, Brown & Moore, W. W. Gordon, John Goode, Jos. C. Wysor, Daniel Trigg, and Jos. Christian, for appellees.

Hinton, J. As the proceedings by mandamus in the second of these causes arose out of the action of the honorable circuit judge in the first cause, it has been thought best to hear and consider them together. The facts deemed necessary for a proper understanding of the points to be adjudged are as follows: On the 6th day of June, 1890, James Wilder and others presented to the Honorable D. W. Bolen, judge of the fifteenth judicial circuit, their bill of injunction, praying that the defendant corporations, their agents, officers, etc., be restrained from collecting any moneys due said companies, etc., and for the appointment of a receiver, etc. On the same day an injunction was awarded by the said judge, and J. M. Bailey, one of the complainants, was appointed receiver; the order appointing the receiver providing that it should "remain in force until the further order of the court or judge in vacation."

On the 8th of August, 1890, the defendants appeared by counsel before the Honorable John A. Kelly, in whose court in Washington county the cause was pending, and filed their petition, supported by affidavit, setting out that they had been given no notice of the motion for the injunction and appointment of a receiver; that the material allegations of the bill were false; that the bonds required of the complainants were wholly inadequate to protect the defendants; that the person appointed receiver was a non-resident, without visible means or property; and that the defendants were able and willing to execute a good bond in such penalty as your honor may direct, conditioned to save the complainants harmless, and to pay and discharge any decree that they may finally obtain in said cause." Upon the filing of this petition Judge Kelly entered an order enjoining the execution of so much of the former order as required the defendants in the suit to deliver, and the receiver to take charge of, the property of the defendant companies for a period of time limited to 20 days, in order to give the defendants time to give notice of a motion to dissolve the injunction. Subsequently, on the 16th day of August, 1890, the plaintiffs, without notice to the defendants, presented to Judge Kelly a second bill, in which they set out the original bill, and the proceedings thereunder, and the orders entered, and, as additional matter happening since the filing of the original bill, they alleged that the defendants, after knowledge of the injunction order, and before the receiver could take...