Garr v. Hill, 5 N.J. Eq. 639

Garr v. Hill

5 N.J. Eq. 639 | N.J. | 1847

The case sufficiently appears in the opinion of the. court, which was delivered by

Chief Justice Green.

*640The court are unanimously of opinion that no appeal will lie from the order complained of in this case.

The subject matter of controversy in the cause was the right to certain real estate in Jersey City. The appellant, who was complainant in the original bill, had obtained an injunction restraining the defendant from aliening or incumbering the property, and from collecting or receiving the rents. An order had also- been made at the instance of the appellant appointing a receiver' of the rents and profits.

By an order bearing date on the 13th of February, 1845, the Chancellor authorized the receiver, instead of collecting the rents in person, to permit the-defendant to perform that duty for him, until the further order of the court, upon the defendant’s giving bond with satisfactory security for the payment- to the receiver of the rents received by him, under the* authority of the court. This is the order complained of.

Without attempting to define with precision- the line- which marks the boundary between appealable ami non-appealable ord'ers, the court deem it perfectly clear that this- is an order from which no appeal can be' taken. The party cannot, in a legal sense, be aggrieved by it. It does not touch the merits of the question.- It does not affect the rights- or interests of the party. It leaves the subject matter of the controversy precisely where' it stood before; It is simply an order regulating the conduct of an officer of the court. It permits the receiver to collect the rents by proxy,- not in person. It retains the fund under the control and subject to the order of the Court, precisely as it was before. It does not, as-' was' suggested by the counsel of the appellant, modify,- much less dissolve the injunction. It does indeed- permit the defendant to collect the rents: not, however, for himself, but as the agent of the receiver and for the benefit of the fund, under the control of the court.

The order might have been made at the instance of the receiver without notice to either of the parties. It is moreover an order which at any time, upon- the application of either party, may be rescinded or modified by the Chancellor. If the security taken by the receiver be insufficient, it is competent for either ¡aárty to* apply for further directions upon that point.

A refusal by the Chancellor to appoint a receiver, or the re*641moval of a receiver when appointed, is not the subject matter of appeal. In Rogers v. Hosack's Ex'rs, (18 Wend. 329,) the court of errors of New York held that no appeal would lia from an order of the Chancellor refusing to remove an executor and to appoint a receiver in his stead. In that case Justice Cowen said, “I understand the line of authorities to stand almost without exception, that to warrant a reversal upon appeal from Chancery, some definite rule of law or equity must appear to have been violated.” The appeal must be dismissed with costs.

The Court deem it their duty thus to dispose of the cause, from a regard to the maintenance of the proper practice of the Court, although the motion to dismiss the appeal was not pressed on the part of the respondent. Inasmuch, however, as the merits of the ease were fully discussed by counsel upon the argument. and as it may be more satisfactory to the parties, the Court authorize mo to add, as their unanimous opinion, that the order of the Chancellor was right, and had the appeal been re - gular, the order should be affirmed,