11 S.C. 486 | S.C. | 1870
The opinion of the court was delivered by
Both parties appeal. The first, second and third grounds of appeal on the part of the city council are upon points which had either been already decided at the former trial, and not appealed from, or do not properly arise in the present case — at least at this stage of the proceeding. The fifth ground of appeal raises an objection to the appointment of a receiver. That point had been decided by the former judgment in this case and assented to by all parties, and is not a proper subject of appeal. The sixth ground is wholly without foundation. It will be time to appeal after something to appeal from has arisen.
The plaintiffs appeal from so much of the judgment as relates to scrip No. 7 of the city stock, and from so much as gives to the receiver leave t® " institute such proceedings as he may be advised may be proper and necessary to try the validity of any claims against the estate of Joseph Whaley, and defend such proceedings as may be instituted against him.” The prayer of the appellants’ complaint asks that a receiver may be appointed to take possession of the property and its proceeds, and administer the same in the place and stead of the executor. The previous judgment in the case had granted the prayer and appointed a receiver clothed with power to administer in the place and stead of the executor, and no appeal was taken. The court had thus taken possession of the property, and is bound to see to its proper administration. The right to prosecute and defend the legal rights of an estate is absolutely essential. It could rest in no one more properly than in the officer of the court appointed to act in the place and stead of the executor. The judgment goes no further than that, and furnishes no ground for appeal. The leave to “ try the validity of claims ” by the institution of proper proceedings 'is, indeed, purely directory. If, when proceedings 'have been instituted, they are erroneous in any respect, objection can then be taken and judgment can be had. As the case now stands, the court sees nothing in this point that requires consideration.
The other matter of appeal is the judgment that, "as matter of law, * * * Joseph Whaley was divested of the stock represented by scrip 7, by endorsing the same to H. G. Loper, cashier, and the subsequent sale of the stock by Loper in pursuance of his contract with Joseph Whaley.” Whatever may be the room to argue, generally, that power of attorney is revoked by the death of the donor, it does not affect the conclusion
This case involves only the question as to the rights of the creditors. The moment the equitable assignment has been ascertained their rights are concluded. The legal owner would have been estopped, and they have no rights which he had not
It is contended by the appellants that the city council is confined to the issues made in the pleadings, and that the defence now relied on is not alleged in the answer. There is nothing in the objection. The issue on which the second trial was had, with the consent of all parties, was framed by the order of this, court remanding the case for trial upon the point stated. In the answer, however, there is a denial of Section 9 of the complaint, which constitutes a general denial of the title to the stock, and under this the defence could have' been made.
Other exceptions taken were not pressed in the argument, and
The judgment is affirmed. Motion refused.
Judgment affirmed.