Hayes v. Brotzman

46 Md. 519 | Md. | 1877

Brent, J.,

delivered the opinion of the Court.

As the cause of action in this case arose before the appointment of the receiver, it is necessary, in order to maintain the action in his name, that it should he made to appear he has had conferred upon him the power and authority to sue.

That such power and authority has been conferred we think is clear. The terms of the decree, under which he is acting, direct that the receiver “ shall prosecute and defend all suits at law that may now be pending or may be hereafter instituted, in which said defendant may be a party.” The object of the decree was “to wind up the affairs ” of the South Ann Street Perpetual Savings Association through the hands of a receiver, and when the decree authorises the receiver to prosecute suits at law which may thereafter be instituted in which the association may be a party, the construction can well be given to it so as to embrace suits in which the association may be a party in interest. The object aimed at by the decree is to collect the property and assets of this association, which had been duly incorporated, in the hands of a receiver, in an available form, so that they might be equitably distributed among the creditors. To accomplish this, the Court saw and understood that suits might become necessary, and in that part of the decree which we have quoted has sufficiently expressed its intention and purpose thereby to confer upon the receiver the authority to institute and prosecute them when the necessity to do so might arise.

The present receiver is not the person named as such in the original decree ; but, on the refusal of the first receiver to act, he was duly appointed in his place and stead. Being substituted for him, he was necessarily clothed with the same authority and required to perform the same duties. Were it otherwise, he could not be said to have been appointed to act in his place and stead.

But apart from this, the Act of 1868, ch. 471, sec. 195, confers ample authority to maintain this action. It provides that, “ whenever a receiver of the property or effects of a corporation shall be appointed before the dissolution or afterwards, new suits may be brought and carried on by any such receivers, either in their own names and capacities as such receivers or in the names of the corporation for which they shall have been appointed ; but no new suit shall be brought in the name of a corporation after it shall have been dissolved, or after the expiration of its charter." The order of the Circuit Court for Baltimore City, offered in evidence, appointing a receiver of the property and effects of this corporation, being the order of a Court of competent jurisdiction to pass it, car vied with it the presumption of regularity. It was not necessary, as contended by the appellee, that the appellant should have gone further and offered proof that the Circuit Court diad acquired jurisdiction to pass the order by proper averments in the bill of complaint or petition. The order, standing, as it does, in full force, must be taken as establishing, at least prima facie, that all the necessary averments were made and proceedings had to give jurisdiction to the Court.

(Decided 13th June, 1877.)

When the appointment, therefore, of this appellant as receiver was established by the exhibition of the order of the Circuit Court of Baltimore City, we think his right to maintain this action was sufficiently shown.

The authorities cited by the appellant fully support the doctrine that, where a statute gives to the receiver a. right to sue, there is no necessity to show special authority from the Court appointing him. So that, even if the order in this case was silent as to the right to maintain this action, the authority to do so is ample under the Act of Assembly.

As a consequence, we think the Court erred in the view expressed in the bill of exceptions, and the judgment will be reversed.

Judgment reversed, and a new trial ordered.