101 Ga. 824 | Ga. | 1897
It appears from the record, that the Marietta. & North Georgia Railway Company was placed in the hands of a receiver on a bill filed in the circuit court of the United States for the northern district of Georgia. It also appears that the North Georgia Telegraph Company went into the possession of the receiver under the authority of the United States court. Thayer sued the telegraph company and obtained a judgment against it. This judgment not being paid, he filed his suit in the State court against the receiver of the railway company, alleging that the telegraph company was indebted to him on the judgment, that the receiver was indebted to the telegraph company for the rental of its lines, the rental value being $100 per month; and praying a judgment against the receiver for the amounts which he alleged were due by the receiver to the telegraph company, and that these amounts be paid into court and be entered as a credit upon his judgment against the telegraph company. To this petition the receiver, Glover, demurred upon the grounds set out in the official report. The court overruled the demurrer, and Glover excepted.
Without discussing all of the grounds of the demurrer, we think that the court erred in not sustaining it on at least two of them. Under the facts above stated, we think that Thayer could not maintain this action against Glover. He had a judgment against the telegraph company, and alleged that the receiver was indebted to that company for the use of their line, instruments, etc., and seeks to reduce this unliquidated demand to judgment and to have it applied to the payment of his judgment against the telegraph company. Leaving out of consideration the question of the court’s jurisdiction, we think that Thayer might, by proper allegations, have reached this debt by an equitable garnishment, but this he did not attempt to do. His petition can not be treated as an effort equitably to garnish the debt alleged to be due by Glover, the receiver, to the telegraph company. It would, for that purpose, he insufficient, and indeed it shows clearly that it was not intended as a proceeding in garnishment at all. Treating it then as simply an equitable petition to subject to the payment of his judgment the sum alleged to be due by the receiver to the tele
Even were this not true, the suit instituted by Thayer can not be maintained. The 3d section of the act of Congress of March 3, 1887, as corrected by the act of August 13, 1888, provides “that every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with this property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed, so far as the same shall be necessary to the ends of justice.” Except in so far as allowed by this act, no suits whatever can be maintained against a receiver appointed by a United States court, without the previous leave of the court in which he was appointed. In the present case it does not appear that such leave was obtained from the court appointing Glover, nor do we think this suit relates to any act or transaction of the receiver in connection with the property committed to his care, in respect of which he is liable under the acts of Congress above mentioned. In the case of Hollifield v. Wrightsville & Tennille R. R. Co., 99 Ga. 365, it was decided that by suit in a State court, without leave of the Federal court appointing a receiver, the question of such receiver’s right or authority to hold or manage the property committed to his charge can not be raised. In the present case the right to recover rent on the property of the telegraph company necessarily involves the right or authority of the receiver to hold or manage such property. He appears to have gone into possession immediately after his appointment and by authority of the order appointing him, and the present suit was instituted in respect of this possession and not in respect of such act or transaction of the receiver in carrying on the business as is covered by the act of Congress. It
Judgment reversed.
