Weimer, Wright & Watkins v. Scales

Citation74 Miss. 1,19 So. 588
PartiesWEIMER, WRIGHT & WATKINS et al. v. C. M. SCALES, RECEIVER
Decision Date16 March 1896
CourtUnited States State Supreme Court of Mississippi

March 1896

FROM the chancery court of Noxubee county HON. T. B. GRAHAM Chancellor.

N Scales, who was doing a mercantile business at Macon, Miss made a general assignment for his creditors, to C. M. Scales assignee. The assignee took immediate possession of the property assigned and filed the deed of assignment for record in the chancery clerk's office, and began the preparation of his petition and bond as required by chapter 8 of the code of 1892. Before the petition and bond were filed, but after the deed of assignment had been filed for record, Weimer, Wright & Watkins sued out a writ of attachment and had it levied upon the stock of goods in the custody of the assignee. The assignee having filed his petition and bond, demanded possession of the goods, which was refused. The assignee then filed a petition to restrain the attaching creditors from further interference with said property, and to require the sheriff to release his levy. The petition set up the foregoing facts, which were admitted by the answers of the defendants. On the petition, the chancellor made an order restraining appellants from further interference with said property, and requiring appellants to appear before the chancellor in vacation, to show cause why said levies should not be released and they dealt with as for a contempt. The parties appeared before the chancellor, and the case was heard on an agreed state of facts, as above set out. On the hearing, the chancellor rendered an order peremptorily requiring appellants to release said goods, and restore the possession to the assignee. Weimer, Wright & Watkins thereupon appealed.

Reversed and remanded.

Critz & Beckett & Jones, for appellants.

Under the code of 1892, §§ 117, 118, the assignee is required to file his petition in the chancery court within twenty-four hours after taking possession. Upon the filing of the petition and the approval of the bond, "the assignee becomes receiver, and shall not be sued, " etc. (§ 119). The assignee is not required to wait twenty-four hours before filing his petition and bond, but may file them contemporaneously with the acceptance of the assignment (§ 117). He is not required to file the assignment at all, except as a part of his petition in the chancery court. He filed it, not in the chancery court, but for record, under §§ 2457 and 4226 of the code of 1892, to give notice to creditors and purchasers. There is nothing in the chapter on assignments which requires the assignment to be recorded. That is a matter entirely independent of the assignment law. The chancery court acquires no jurisdiction and as absolutely nothing to do with the matter till the petition is filed and bond approved by the clerk, and not till then does he become a receiver.

The claim that the receivership relates back to the date of the assignment cannot be sustained, for several reasons: (1) The assigneeship, when the petition and bond is filed, does not become merged in the receivership. Shoe Co. v. Sykes, 72 Miss. 404. (2) It is impossible to conceive of a receivership relating back to a time when there was no case pending, for it is of the essence of receivership that there shall be a case pending. He acts in aid of the court in a particular case and cannot exist without the case. (3) The language of the statute itself is that the assignee shall become a receiver "on the filing of his petition and the approval of his bond" (§ 119). (4) It would be unconstitutional to hold that it relates back. It would give the assignor and assignee twenty-four hours in which to remove or dispose of the property, with no power in any court on earth to interfere. It would amount to a stay law for that time. The bill of rights provided that "all courts shall be open and every person . . . shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay." Again, "No person shall be debarred from prosecuting . . . any civil action for himself before any tribunal of this state." Const., art. 3, secs. 24, 25. A stay law which debars a man from the use of the courts is unconstitutional. Coffman v. Bank, 40 Miss. 36. Where two courts have concurrent jurisdiction, the one which first gets the actual jurisdiction is entitled to the full and exclusive jurisdiction till the litigation is ended. McPike v. Wells, 54 Miss. 136. The question is perhaps more sharply defined in the United States court than others. In that court it is held that it is not a question of right or paramount lien, but a question of time, and the court which first gets the actual jurisdiction by a seizure of the property is entitled to retain it as to that property. Wiswall v. Sampson, 14 How., 61; Smith v. McIver, 9 Wheat., 532; Hagan v. Lucas, 10 Pet., 400; Peck v. Jenness, 7 How. (U.S.), 612; Freeman v. Howe, 24 How., 450. Prior liens are not displaced by the appointment of a receiver. High on Receivers, sec. 138.

The sheriff levied the attachments before the assignee filed the petition and bond. We wish to emphasize the word assignee, because the statute says the petition and bond is filed by "the assignee, " not the receiver. So, up to that time, he is certainly not a receiver, but becomes so by that act. Code 1892, § 119. Up to that time he had not become an officer of court. To hold otherwise would present a remarkable incongruity. If the attachment is levied before the twenty-four hours expire, and the assignee does not give bond, the attachment is good, otherwise not. In other words, the assignee can play fast and loose with the attachment lien and the jurisdiction of the courts. If the assignee files his petition and bond after the levy, and before the expiration of the twenty-four hours, the sheriff is in contempt of court, but if the assignee does not file his petition and bond within that time, the sheriff is not only not in contempt, but has performed a praiseworthy act of duty. His guilt does not depend on what he does but what some one else does afterwards. Before the petition and bond is filed, the creditor cannot file the cross petition under § 121, for the cross petition implies that the petition has been filed. The creditor can, however, go into any court having jurisdiction in an original suit. 71 Miss. 102. If it is in the circuit court, the chancellor can either permit the suit to proceed to judgment and require the plaintiff to come into the chancery court for its satisfaction, or can require the plaintiff to come at once and enjoin him from proceeding in the circuit court.

It has been the common practice in cases of assignment in this state, since the case of Bishop v. Rosenbaum, 58 Miss. 84, for the assignee, or some of the nonattaching creditors, to file bills in the chancery court, and bring all the attaching creditors into that court, so that the whole matter, and all priorities, could be settled in the same suit. We do not deny that the chancellor had power, on a proper petition by the assignee, to enjoin us from proceeding in the circuit court, and requiring us to come into the chancery court, and bring with us and set up whatever lien we had acquired, but we do deny his right to peremptorily order the sheriff to release his levy and thus destroy our lien altogether in this summary way.

J. E. Rives, for appellee.

The chancellor held that an attachment under the facts in this case, creates no lien upon the property superior to the rights of the assignee. It was the evident intention of the legislature to...

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3 cases
  • Stirling v. Logue
    • United States
    • Mississippi Supreme Court
    • 23 d1 Setembro d1 1929
    ... ... 318, 323, ... 324; North American Land & Timber Co. v. Watkins, 48 ... C. C. A. 254, 109 F. 101; Griffith's Mississippi Chancery ... 1035; ... Estes v. Gunter, 122 U.S. 450; Weiner v ... Scales, 74 Miss. 1; Love Mfg. Co. v. Queen City Mfg ... Co., 74 Miss. 290; ... ...
  • Dodwell v. Rieves
    • United States
    • Mississippi Supreme Court
    • 23 d6 Dezembro d6 1916
    ... ... Crocker, 36 Fla. 61, 18 So. 152; Weiner v ... Scales, 74 Miss. 1, 19 So. 347; Mahorner v ... Forcheimer, 73 Miss. 302; ... ...
  • Metcalfe v. Merchants' & Planters' Bank
    • United States
    • Mississippi Supreme Court
    • 2 d1 Julho d1 1906
    ...parties by cross-petition, we think the chancery court had full jurisdiction of all matters presented in complainants' petition. Weimer v. Scales, 74 Miss. 1. In Code 1892, § 8, provides that suits affecting the assignee must be filed in the chancery court. Counsel for appellees seem to be ......

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