Byrne v. Allen

10 Haw. 325 | Haw. | 1896

OPINION OP THE COURT BY

PREAR, J.

The plaintiff sued the defendants, who were partners in the State of Washington, for work and labor done and goods sold and delivered, and attached a debt owing to the defendants by a person temporarily in these islands. Service was made on one of the defendants, also temporarily here, but no appearance was made by or for them. The garnishee suggested that the debt was owing to a third person, one John Martin, who was thereupon cited in by the court. Martin appeared by attorney and set up among other things that he was, by appointment of a court in the State of Washington, receiver of all of defendants’ property, tbat tbe debt sued on was contracted in tbat State, tbat plaintiff and all tbe defendants were residents of tbat State, tbat said appointment bad been recognized by tbe plaintiff and was binding on bim and would be enforced against bim by tbe courts of tbat State, and prayed tbat, as tbe rights of no Hawaiian citizens were involved, tbe receiver might be recognized by comity and tbe plaintiff remitted to bis remedy in tbe State of Washington. Tbe plaintiff then in effect denied tbat be bad recognized tbe appointment of tbe receiver and alleged among other things tbat be was domiciled in these islands.

Tbe court, jury having been waived, ruled tbat “tbe garnishment must bold and tbe funds in tbe garnishee’s bands Joe held to abide tbe final action in tbe case.”

To this ruling exceptions were taken by tbe receiver and tbe garnishee.

The basis for this conclusion by tbe trial court was tbat inasmuch as tbe appointment of tbe receiver did not operate as an absolute assignment to bim of tbe defendants’ assets, bis claim could not be preferred to tbe claim of one who bad already obtained an attachment. It seems to us tbat an essential issue was overlooked.

In general, a receiver appointed in one jurisdiction is not entitled as of right to recognition in another jurisdiction, but be may be recognized by comity, and whether be should or should not be recognized in any particular case depends upon tbe circumstances of tbat case. Where, as in this case, a creditor of a company over whose property a receiver has been appointed by a foreign court has obtained an attachment here of a debt owing to such company and tbe receiver intervenes, tbe rule is established tbat if tbe creditor is a domestic creditor bis claim will be preferred to tbat of tbe receiver, for be is not subject to tbe foreign jurisdiction and it is tbe duty of a coutt to protect its own people first; but tbe rule is otherwise if tbe creditor is a resident of tbe state in which tbe receiver was appointed, and is bound by tbe orders of its court, for to prefer bis claim would be an act of unfriendliness and not of comity. Bagby v. Atl., Miss. & Oh. R. Co. 86 Pa. St. 291; Gilman v. Ketcham, 84 Wis. 60; Bank v. McLeod, 38 Oh. St. 174. See also Boulware v. Davis, 90 Ala. 207 (9 L. R. A. 601); Catlin v. Wilcox, &c. Co., 123 Ind. 477; and note to Long v. Forrest, 23 L. R. A. 33 (150 Pa. St. 413). We cannot now state precisely tbe law applicable to tbe facts of tbis case, for we do not know fully wbat tbe facts will be found by tbe trial Judge to be. We merely state sufficient to sbow tbat there was a material issue between tbe parties wbicb tbe trial court failed to consider.

A. 8. Hartwell, for plaintiff. L. A. Dickey, for receiver and garnishee.

A new trial is granted upon tbis issue.