48 So. 731 | Miss. | 1909
Lead Opinion
delivered the opinion of the court.
On or about February 15, 1908, the Bank of Meadville, a corporation, found itself in a failing condition, due partly to the general financial condition of the country and partly to mismanagement on the part of its cashier. Indeed, it is contended by appellants that the cashier was guilty of criminal peculations. However that may be, at a stockholders’ meeting held on February 15th it was determined, among other things, that the bank should make a general assignment, since it was deemed impossible that it could be continued as a going con-
Upon the hearing of this application the chancellor made the following statement: “On the 16th day of February, 1908, Truly, an attorney, presented to him (the chancellor) the
It is insisted that the appointment of a receiver was void, since it appears from the above statement of the chancellor that the order appointing the receiver was in fact signed before the bill vras filled and before any cause was in fact pending. Therefore appellants invoke the authority of Hardy v. McClellan, 53 Miss. 511, Barber v. Manier, 71 Miss. 726, 15 South. 890, and Smith v. Valley Dry Goods Co., 79 Miss. 276, 30 South. 653. These cases unquestionably hold, what is universally accepted as the law, that there must be a case pending in court- before a receiver is appointed, and that an appointment in advace of the filing of the bill is void. The point before us
The case under consideration falls squarely within the principles of these two eases. The statement of the chancellor is
We attach no importance to the fact that the chancellor, on the hearing of the application to vacate the receivership, made the statement above set out without abjection from either litigant. We are not here concerned so much with questions of procedure and practice as we are with the fundamental postulate that the absolute verity which a judicial record imports cannot be in any wise assailed, except by a showing as to fraud. This court must look to the evidence now before it, and, as we have seen, it is bound by the face of the record, and must disregard wholly the statement of the chancellor, regardless of the circustances under which it was made. The unimpeachable verity of the decree controls the action of this court, precisely as it must have controlled the action of the court below. We conclude, therefore, that there is no merit in the contention that the receivership should have been vacated on account of the
It is earnestly insisted that the decree should be reversed on the merits; that is to say, that the ease made by the bill and answer did not warrant the retention of the receiver. We observe, in response to this contention, that the appointment and retention o fa receiver rest largely within the discretion of the chancellor. The allegations of the bill and the admissions of the answer convince us that the bank was in a failing condition, and that both parties to the controversy were desirous of having its affairs administered by the chancery court. The only difference was ats o method; the one faction contending for an assignee, and the other for a receiver. The result is practically the same, since both can act only under the specific direction of the ourt. This being the conceded status of the matter, we cannot see how appellants’ rights can possibly suffer b ythe retention, of a receiver, or what just cause can exist for displacing him. We must decline, in this state of the case, to interfere with the exercise of the chancellor’s discretion.
Affirmed.
Concurrence Opinion
delivered the following specially concurring opinion:
I concur in the result reached in this case, and in the opinion in all respects save one, and that is this: I do not think that the case of Childress v. Carley, 92 Miss. 571, 46 South. 164, has any application whatever to the facts of this case, and I adhere fully to my dissenting opinion in that case as the sound view of the law, on the facts of that case. In this case now before us,, the chancellor did read the application for a receiver, and did fign it, and did sign the minutes of the court in reference to it. In other words, the chancellor read the order after it was drawn up, and- the minutes of the court relating thereto, and signed both; and the effort here is to contradict a record eoncededly made by the chancellor himself. In the Childress-Carley case