Warriner v. Fant

• Decision Date: 16 April 1917
• Docket Number: 18953
• Citation: 74 So. 822,114 Miss. 174
• Court: Mississippi Supreme Court
• Parties: WARRINER v. FANT

74 So. 822

114 Miss. 174

WARRINER v. FANT

No. 18953

Supreme Court of Mississippi

April 16, 1917

Division B

APPEAL from the circuit court of Coahoma county, HON. W. A. ALCORN Judge.

Suit by Ellengton M. Fant against B. R. Warriner, receiver. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed and cause remanded.

W. H Kier and W. J. Lamb, for appellant.

We respectfully submit in this case that E. M. Fant by joining with the other complainants in a suit in equity to have a receiver appointed to take charge of the assets and property and money belonging to the Tishomingo Tie and Stone Company and M. W. Cozart and G. T. Edwards, et al, thereby elected to pursue his remedy in the said court of equity and this suit in the chancery court of Tishomingo county, Mississippi, having proceeded to judgment thereon, the appellee here is bound thereby, and B. R. Warriner, as receiver, is entitled to have possession of the hereinbefore mentioned funds in the two banks at Clarksdale, Mississippi.

It would be inequitable to permit the appellee here to obtain in any such manner as is attempted by his attachment suit in the circuit court of Coahoma county any priority or preference over the other creditors of the Tishomingo Tie and Stone Company, et al., and over the other complainants who joined with him in the prosecution of the suit in the chancery court of Tishomingo county, Mississippi wherein the appointment of said receiver was obtained. 25 Cyc., p. 260. (d) page 262 and page 265; Merchantile Realty Co. v. Stetson, 120 Iowa 324, 94 N.W. 859, 25 Cyc., page 266.

We therefore respectfully submit that the appellee here, with full knowledge of all the fact, by becoming a party to the Suit in the chancery court of Tishomingo county, thereby elected to pursue his remedy in the said court of equity, which election was binding upon him, and upon the intervention of the receiver in the cause in the circuit court of Coahoma county, the appellee here should have been compelled to abandon the same and the funds in the two Clarksdale banks should have been by order of that court direct to be turned over to the said receiver, that this case should be reversed and remanded and order entered here directing the said funds in the said two banks paid over to B. R. Warriner, receiver, etc.

Maynard & Fitzgerald, for appellee.

In our opinion, there is no question in this case of election of remedies. "The doctrine of election depends not upon technical rules, but upon the principles of equity and justice. There must be some distinct and unequivocal act evincive of a choice." Madden v. Railway Co., 66 Miss. 258. "The doctrine of election of remedies only applies where a party who has elected to pursue one of two inconsistent remedies is thereafter estopped to pursue the others." Watson v. Perkins, 88 Miss. 64.

It does not seem to us that Mr. Fant by asking for a receiver waives any priority of attachment lien. For instance, he might have had a mortgage on some of the property of the Tishomingo Tie & Stone Company and the fact that he joined in the action for a receiver certainly does not mean that he waives that mortgage right. In other words, one asking for a receiver merely asks that a receiver be appointed to gather together the property and see that none of it is wasted until all claims can be properly presented. The mere appointment of a receiver does not change the status of any claims whatever. Besides that, one may pursue equitable and legal remedies at one and the same time until one of the other brings results and neither one of these remedies is in direct opposition to the other until some final conclusion is reached in one case or the other, in which event of course the case so decided would be res adjudicata.

"A waiver or abandonment of the attachment lien is not shown by the conduct of an attaching creditor in joining in a proceeding to have the debtor declared insolvent and a receiver appointed." Bertz v. Turner, 102 Cala. 672, 36 Pacific, 1014.

"Merits not determined and rights and liens not affected by appointment. The appointment of a receiver vests in the court no absolute control over the property and no general authority to displace vested contracts liens, and while a receiver will be appointed only on the application of one who appears to have an interest in the subject-matter, yet when the appointment is made a receiver is a mere officer of the court, and the appointment creates no lien in favor of any of the parties applying for it and gives no advantage or preference to such parties over other claimants to the property; it does not determine the rights of the parties, or even affect them except so far as it preserves and retains control of the property to answer the final judgment." 34 Cyc., p. 180, Title "Receivers. "

"Priority and lien." "The lien acquired by a creditor by a judgment, or by a judgment and execution placed in the hands of the officer, or by the levy of an execution or attachment, cannot be destroyed by the subsequent appointment of a receiver of the debtor's estate." 34 Cyc., 228, Title Receiver's.

Both equity and the law give advantage to the diligent. Had the appellee delayed in levying his attachment, the chances are that the money which was deposited in the banks would have been drawn out before the appointment of a receiver three days afterwards. The money then would have been lost both to appellee and to the creditors. Surely appellee by his diligence in attaching the money and receiving it is entitled to his priority of lien.

OPINION

COOK, P. J.

This action was begun in the circuit court of Coahoma county by Ellington M. Fant appellee, to recover certain money on deposit to the credit of the Tishomingo Tie & Stone Company. An attachment was sued out by Mr. Fant against the Tie & Stone Company, and garnishments were served on the Bank of Clarksdale and the Planters' Bank. B. R. Warriner, receiver of the Tishomingo Tie & Stone Company, intervened, claiming that he, as receiver, was entitled to the funds on deposit in the banks for the benefit of the creditors or the insolvent Tie & Stone Company. The case was submitted on an agreed statement of facts, and the circuit court decided that Mr. Fant, and not the receiver, was entitled to the aforesaid funds on deposit, from which judgment the receiver prosecuted this appeal.

The agreed statement of facts is in...