Citizens' Commercial & Savings Bank v. Bay Circuit Judge

110 Mich. 633 | Mich. | 1896

Per Curiam.

The relator commenced an action of assumpsit against A. Mosher & Son, and recovered a judgment. A corporation known as the E. J. Vance Box Company was indebted to Mosher & Son. One Wilson H. Tousey had been appointed receiver of said corporation by the circuit court for the county of Bay, in chancery. The relator, soon after commencing suit against Mosher & Son, petitioned the-chancery court for leave to bring a suit in garnishment against the receiver, which was granted. The receiver filed a disclosure denying that he had any property in his hands belonging to said Mosher & Son, but disclosed that said corporation was indebted to said Mosher & Son in the sum of $5,172.-89, that other parties claimed an interest in said indebtedness, and asked that the parties interested in the controversy growing out of said credit should intervene. An order to that effect was made; issue was duly joined; and upon the trial the respondent, after the relator had rested its case, made an order setting aside the one granting leave to bring the suit, upon the ground that it had been improvidently issued. The respondent returns that it appeared from the testimony that when the writ was served, and as well at the hearing, it was impossible th determine whether the receiver would be able to pay all the creditors in full, or what per cent, he would be able to pay. The relator now asks for the writ of mandamus to compel the respondent to set aside the last-named order, and to proceed with the hearing of the cause.

It is settled that a receiver cannot be sued or garnished without leave of the court. Tremper v. Brooks, 40 Mich. 333. See, also, Beach, Rec. § 228 (Alderson’s Ed. § 242); High, Rec. § 151. It is also settled that a receiver is not a public officer, and that he may be garnished, with permission of the chancery court, for any balance remaining in his hands after the execution of the trust. Cohnen v. Sweenie, 105 Mich. 643. The grantipg of leave to bring such a suit rests in the sound discretion of the court. Appellate courts will not interfere except in cases of the abuse of that discretion. If these courts have the discretion to grant leave, they have also the power and discretion to set aside the order when, in their judgment, it has been improperly made. Receivers are not to be harassed with garnishee proceedings and other suits unless, upon the proper showing, justice and equity require it. There is no evidence of an abuse of discretion, and the writ will be denied.