Alexander v. Manning

58 Miss. 634 | Miss. | 1881

Chalmers, C. J.,

delivered the opinion of the court.

Circuit judges have no power under the Code of 1880 to appoint receivers in cases pending in the Chancery Court, either when the chancellor is disqualified, or in any other state of case. Under the Code of 1871 (sect. 979), both circuit and supreme judges were authorized to make such appointments ; but no such provision is found in our present Code. It is true that by sect. 2267 of the Code of 1880 circuit judges are empowered to issue “ writs of habeas corpus, mandamus, certiorari, supersedeas, and attachment, grant orders of injunction, and all other unexecuted writs ; ” but this does not include the appointment of a receiver, which is not the issuance of a remedial writ, but the exercise of judicial authority pertaining alone, in the absence of statutory provision, to the court or to the judge in which or before whom the matter is.pending. Whether it would be admissible even for the presiding chancellor to make such an order otherwise than in term-time, if not specially authorized by statute, may well admit of doubt.

The section of the Code last cited is not the equivalent of sect. 979 of the Code of 1871, but is the counterpart of sect. 533 of said Code. It was by virtue of sect. 979 alone that circuit judges heretofore appointed receivers ; and this section, as before remarked, is not brought forward, so far as it includes the appointment of receivers, in the Code of 1880. Sect. 2272 of the Code of 1880, relative to proceedings in vacation where a judge is disqualified, does not authorize a circuit judge, under such circumstances, to exercise functions pertaining solely to a chancellor, or vice versa, but only directs that in such a case application may be had to the chancellor or judge of an adjoining district, each class of judicial officers exercising the powers appropriate to his sphere.

Decree reversed, and order appointing receiver vacated.