30 Pa. Super. 193 | Pa. Super. Ct. | 1906
Option by
In the decree of the circuit court of the United States appointing the defendants receivers of the Lebanon Iron and Steel Company, the company, its officers, agents and employees and all other persons were enjoined from interfering with the possession of the receivers. Later, the circuit court authorized the receivers to continue the business of the company, and in so doing they contracted the debt for which the plaintiff brought suit and obtained this judgment. Immediately thereafter, and without obtaining leave of the federal court, the plaintiff issued a fi. fa., by virtue of which the sheriff was about to levy on and sell the property of the company in the hands of the receivers. Thereupon they applied to the common pleas and obtained a rule to show cause why the execution should not be stayed, set aside and stricken from the record, which, after argument upon demurrer to the petition, the court discharged, for the reason set forth in the opinion of the president judge, “ that this court has no jurisdiction to grant or refuse the prayers of the petitioners.” The ordinary effect of the appointment of a receiver under circumstances such as these is to take the property out of the custody of the parties and place it in charge of an officer of the court. The property being in gremio legis, the court appointing the receiver will protect his possession against intentional interference therewith by any person without leave, by all necessary process known to its practice, including attachment for contempt: Ex parte Tyler, 149 U. S. 164 (13 Sup. Ct. Rep’r. 785); and, in the absence of legislation governing the subject, other' courts will recognize and respect the custody thus taken: Robinson v. Atlantic & Great Western Railway Co., 66 Pa. 160. Prior to the act of Congress of March 3, 1887, suit could not be instituted against the receiver of a corporation appointed by a federal court without first obtaining leave of the court appointing him: Barton v. Barbour, 104 U. S. 126; Texas & Pacific Ry. Co. v. Cox, 145 U. S. 593 (12 Sup. Ct. Repr. 905). And while that act, as amended in 1888, provides, that the receiver may be sued in respect of any act or transaction of his, in carrying on the business connected with such property, without the previous leave of the court in which he was appointed, it also provides, that “such suit shall be subject to the general equity jurisdiction of
But the refusal to set aside or stay an execution is not always a matter subject to review on appeal: Stephens v. Addis, 19 Pa. Superior Ct. 185, and cases there cited. If after the refusal of the court to stay or set aside the execution in this case the plaintiff had voluntarily stayed it, it would seem that the order would not constitute such prejudicial error as would entitle the defendant to appeal. A somewhat similar situation is presented here. The appellee’s counsel showed upon the argument of this appeal, and this was not disputed, that before the appeal was taken the receivers applied to the federal court, under whose .decrees and orders they were acting and holding
The appeal is dismissed.