| Mich. | Jul 10, 1894
An opinion was handed down in this ' case at the last term (ante, 352), in which it was stated that defendant Messmore alone had appealed. The printed record fails to show an appeal by defendant Joseph II.
In the former opinion, we held that there was ample testimony to show a fraudulent scheme between the defendant Joseph H. Dillon and his brothers to defraud creditors. We shall therefore confine our further consideration of the case to the other questions raised which affect the rights of the defendant Joseph H. Dillon.
It is assumed by defendant that appeals have been taken from the order of the circuit judge of March M, 1892, appointing a receiver; from the orders of the court of April 18, requiring the defendant Joseph II. Dillon to #appear before the court at a later date and submit to examination, and of April 30 and July 9, adjudging the defendant Joseph II. Dillon to be in possession of certain goods, and requiring him to deliver the same to the receiver; and from the final decree, which contained a confirmation of the appointment of the receiver, and also a confirmation of the orders requiring the defendant Joseph H. Dillon to deliver certain goods in his possession to the receiver.
As was said in the former opinion, the objection as to the appointment of the receiver is not available to the defendant. The final decree confirmed the appointment of the receiver. While the appointment of the receiver by an order at chambers was irregular, this order of the court, •confirming the appointment, was made upon full hearing, and, we think, should be allowed to stand.
So far as the orders adjudging that the defendant had in his possession certain goods which passed by the assignment, and Avhich, in any view of the ease, should have been delivered either to the assignee or to the receiver, are concerned, these orders were court orders; and if it is conceded that the defendant could ignore these orders, because
It is contended, however, that the evidence is insufficient to show that the goods in question were in the possession of the defendant Joseph H. Dillon. The testimony is not altogether clear upon this point. The facts appear that», the assignment was made on the 11th of February,«1892; that on the 24th of January, 1892, defendant received into his stock goods to the amount of $522, purchased of Heavenrich Bros., and between that date and the date of the assignment three other consignments — two of $26.50 each, and one of $14.50 — from the same source, making a total of $589.50; and that a very few days before the failure he received $118.38 worth of goods from H. A. Newland & Co. Immediately after the assignment, replevin was brought by each of these creditors. Heavenrich Bros, succeeded in recovering $181.75 worth at cost price, and Newland & Co. recovered $44.13 at cost price. We are satisfied that the defendant has also shown that $65.50 worth of the Heavenrich goods were sold out of the stock. It is insisted, however, by the defendant, that his testimony shows that all these goods were sold. He is not able to state to whom they were sold, and fails to render any satisfactory account of the proceeds. There was evidence tending to show that a portion of the Newland & Co. goods were secreted, under a bed. occupied by defend
As to the power to compel the defendant to turn this property over to the receiver, see High, Rec. § 168.
Complaint is also made that the order for sale was unauthorized because made at chambers.. But the order contains the following recital:
“Inasmuch as it has been represented to this court by the solicitor for the defendants that the goods and chattels Avhich the defendant Messmore has heretofore been enjoined from selling or intermeddling with are de}3reciating in value, and should be sold forthwith, under the order and direction of this court, and the proceeds thereof to abide the further order of this court.”
It does not appear that any objection was taken at any time to the sale being made in pursuance of this order. The decree in effect affirms the sale, and treats the proceeds of the sale as a trust fund in -the hands of the receiver. We do not think the irregularity can avail the defendant.
It is further urged that the decree provides for a distribution of the funds in the hands of the receiver in disregard of the right of defendant to exemptions. It does not appear that this claim was made upon the-hearing, but the decree will be so far modified as to permit the defendant to apply for an allowance for exemptions.
We also think the circuit judge was in error in fixing the amount of goods in the hands of defendant Joseph H.' Dillon, which, 'by the terms of the order, he was required to turn over. We think the evidence shows the disposition
As thus modified, the decree of the court below will be affirmed. The defendant Joseph Tí. Dillon will be entitled to recover the cost of printing his brief, and the usual solicitor’s' fee in this Court, and the cause will be remanded for further proceedings.