Bond v. State

68 Miss. 648 | Miss. | 1891

Woods, J.,

delivered the opinion of the coui’t.

The conclusion reached by us in this much argued and protract-edly considered case makes it necessary to examine two points only.

1. Was there reversible error in tbe action of the court below in refusing to enter the first verdict of the jury and in ordering a mistrial recorded?

It is wholly unnecessary for us to say whether the first verdict, as returned into court by the jury, was good or not. If it had been entered, the learned judge must have unhesitatingly caused it to be set aside, since it was without support from any evidence, from any quarter. There is no pretense that there was any bulletin board in the depot on or about the first day of December, as charged in the first count of the declaration, and that was, in substance, the complaint contained in that count. A verdict violently opposed to all the evidence could not be permitted to stand ; and this, we must suppose, had weight with the court in ordering a mistrial entered. The action complained of is thus shown to have been immaterial, and no way prejudicial to appellant’s rights. He is in no worse condition than he would have been if the verdict had been entered, and then promptly set aside; and this is exactly what must have taken place, if his motion to enter the verdict had prevailed. Practically, he stands now as he would have stood if the verdict had been entered as returned. His hurt, if any, is only technical: it is damnum absque injuria. We must, therefoi'e, on this' ground, decline to reverse the judgment and direct the first verdict to be entered.

2. The 3d plea of the defendant below averred a perfect bar to the further prosecution of the suit against him officially, as receiver, and the demurrer thereto should have been overruled.

The appellant had been appointed receiver of the Vicksburg & Meridian Railroad by the circuit court of the United States for the southern district of Mississippi, and was sued as such receiver in this action. After suit instituted, and before plaintiff below filed its amended declaration, the appellant was, by an order of the court appointing him, fully and finally discharged from the receivership, and this discharge from his official trust he sought to avail himself of by his 3d plea.

Manifestly, the suit was instituted to charge the appellant in his official character, and to subject to liability the property of the railroad company held by him by virtue of his representative character. The action is not against the individual, and the purpose was to reach the property of the railroad company in his hands as the representative of the company. The final discharge of the receiver put an end to his official existence, and withdrew from his care and management the road and property of the company. The discharge having terminated the representative character of the receiver, we are at a loss to understand how any judgment could be rendered against him officially that would render liable to its satisfaction any property of the company, — property in his hands when suit was brought, but now finally withdrawn from him, by the extinction of his official character, before his plea was filed. There is no demand against him as an individual, but only as the representative of the railroad company. It seems plain to us that with the termination of his representative character, and the withdrawal of the road and its property from his custody by the order discharging him, no judgment could be rendered against him properly as the representative of the company whereby to make its property chargeable. His official liability ceased with his official existence. The 3d plea disclosed a perfect defense for the receiver.

See N. Y. and W. U. T. Co. v. Jewett, 115 N. Y. p. 166 ; Ib. p. 267, Woodruff v. Jewett; Farmers’ Loan and Trust Co. v. Central R. R., 2 McCrary, 181; 76 Texas, 444, Brown v. Gay ; Beach on Receivers, 715 and 720.

The case of Miller v. Loeb, 64 Barbour, 454, cited and relied upon by counsel, is not at all in conflict with the authorities generally. This case is authority for the proposition that the discharge of a receiver cannot be successfully pleaded in an action brought to recover for a personal liability incurred by that officer during his receivership. In this case of Miller v. Loeb the receiver had seized and sold property claimed by third parties, and not belonging at all to the estate which he held as receiver, and, on this state of fact, the court held the discharge no bar to the action. "We do not dissent from that opinion, nor is it inharmonious with the opinions generally concurring with the views we have advanced.

We are not to be understood as intimating, as counsel for appellant contends the law is, that the discharge of the receiver abates a pending suit. We see no reason for holding otherwise, in this case, than is held in cases generally where persons are sued in a representative character, and, for any reason, cannot be proceeded against further. By proper application, we are of opinion that the cause may be revived or proceeded with against the successor of the receiver, if intervening rights do not forbid all hope of a fruitful recovery. Reversed.