Thе respondent, District Judge, refused to comply fully with the mandate of this court issued in Brictson Mfg. Co. v. Close et al.,
“That tlie receiver be required to return all property in his hands to those from whom he received it, that he be thereupоn discharged, and that the bill of complaint be dismissed at complainants’ costs.”
It pointed out the consecutive steps in obviously appropriate procedure. But the action of respondent, when moved to enter decree on the mandate, was this: It was ordered that the complaint of Close et al. be dismissed at their cost, that property in the hands of the receiver be “impounded in the hands of the receiver until further procеedings are had on the petition as to intervention,” that action on that part of the mandate which required that the receiver be directed to return the property in his hands to those from- whom he had received it be suspended; and afterward, but on the same day, it was ordered that other stockhоlders who were seeking to intervene in the suit of Close et al. be permitted to do so. We pass by the fact that the suit of Close et al. was not pending, but had been dismissed out of court when leave was granted to intervene therein. Thereupon petition of the Brictson Manufacturing Company was filed herе, in which it is prayed that the writ of mandamus issue to compel respondent to com-pL with the mandate. Rule to show cause issued, and respondent has made his return thereto. He admits the facts that have been stated, and then sets up as causes and reasons why he did not comply fully with the mandate of this court, and why the writ prayed for should not issue against him, the substance of a part of the allegations found in the so-called petition in intervention of a largе number of other stockholders in the Brictson Manufacturing Company. That petition is also in the record here. It repeats in general terms what we found and considered and passed upon in the suit of Close et al., and adds thereto a charge that the petitioners were each induced to buy the shаres which they respectively hold in the Brictson Company through
Is the showing made by respondent in his return sufficient? We think not. The situation cannot be compared in any respect to cases (of which there are many) in which a court on the proper exercise of its functions finds itself in possession of a fund which cannot be disposed of until the conflicting rights of various claimants thereto are heard and determined. Under those circumstances, new claimants to an interest in the fund may, on proper showing, be admitted and heard after appeal and action thereon. But here the prоperty and fund in question was taken and held without right, and justice demands that restoration to the lawful owner be made, so that the wrongful taking in the first instance be not рerpetuated. This court, in Hawes v. Bank,
“Courts may not seize property without jurisdiction, and then claim jurisdiction over the property becausе it is in the possession of the court.”
See, also, Baltimore B. & L. Ass’n v. Alderson,
. Chief Justice Bleckley puts it convincingly in Caswell v. Bunch,
“Property left in the hands of a receiver after the bill has been dismissеd for want- of jurisdiction, ought to be restored to whom? To the party from1 whom the receiver' took it. That is about the least that anybody can do upon a bill that was filed without jurisdiction — to let matters go back in the state in which they were when the unfortunate bill commenced. It would seem to make no difference that the opposite party had good claim of right to the possession. He ought to be left to litigate that thing, and not get the possession upon a bill that wаs entertained without jurisdiction, and that too, after it has been dismissed.”