47 So. 425 | Miss. | 1908
delivered the opinion of the court.
On July 25,1906, pending the operation of the Code of 1892, the Scranton State Bank was hopelessly insolvent, and sus
The proper process was in fact issued about 4:00 o’clock on the afternoon of the 27th, as we have said, and delivered to the sheriff on that day; but this process was not executed upon the-president of the bank until the morning of the 28th, on which, day, at 7:30 o’clock in the morning, the directors of the bank made an assignment to the receiver for the benefit of all the-creditors. After the appointment of the receiver, and after this-, service of process upon the bank, and at 10:00 o’clock in the
Under this state of facts it is urged, by a very forceful and skillful argument on the part of the appellant, first, that the appointment of a receiver was void, because the creditors asking his appointment had not obtained a judgment nor acquired any specific lien op the property; second, because the bill was a mere ex parte pétition, because it contained no prayer for process, and the chancery court had no authority to appoint a receiver in an ex parte proceeding; third, because when the receiver was appointed there was no suit pending, as had to 'be in order to empower a chancery court to appoint a receiver, and because the bill had not been legally filed, and no summons had been issued or served at the time when the chancellor appoinetd the receiver.
In order to sustain these positions, it would have to be held that all the proceedings against the bank were absolutely null and void. To this we cannot subscribe. The bill of the creditors and depositors sets forth a condition of things which justified the instant appointment of a receiver under Annotated Code of 1892, § 674, which authorizes immediate appointment of a receiver without notice, where it appears “that an immediate appointment is necessary, or good cause-be shown for not giving notice.” The failure to ask for process in that bill may or may not have been good ground of demurrer on the
Even though it is said in Whitney v. Bank, 71 Miss. 1009, 15 South. 33, 23 L. R. A. 531, that the appointment of a receiver for a bank on its own ex parte application is void and subject to collateral attack, still that case holds that where, under the void appointment, the court has taken control of the assets, an independent creditors’ bill, without any liens on the part of the creditors, for the preservation of the assets, a decree appointing a new receiver, even if erroneous, cannot be collaterally attacked. We think this ease covers the one before us.
The emergency here required immediate action. It was taken, and the property was in the hands of the court, through its receiver, when the attachment was issued and levied. This case is wholly different from Bank v. Hoyt, 74 Miss. 221, 21 South. 12, 36 L. R. A. 796, 60 Am. St. Rep. 504, where the creditors’ lien attached in the interim, while the bill had not only been taken out of the office by the attorney, but the clerk had been instructed not to issue process on it. Without the statute, on the emergency, we think the court might appoint a receiver. The appointment was not void, and is not subject to this collateral attack. The suit was a pending suit when the attachment was issued. Bank v. Hoyt, 74 Miss. 229, 21 South. 12, 36 L. R. A. 796, 60 Am. St. Rep. 504. The appointment of a receiver may be made on the filing of the bill, or at any
Affirmed.