23 Miss. 306 | Miss. | 1852
delivered the opinion of the court.
This is a motion made in this court by Anne Hill, adminis-tratrix of Isaac Sellers, deceased, for an order upon the receiver appointed by the superior court of chancery, in the case of
It appears that upon the granting of the order for the appointment of the receiver, which was done on the 10th of February, 1850, the said Anne Hill prayed for an appeal from said order to this court, to operate as a supersedeas, without an appeal bond being given by her, as required by the-statute in ordinary cases of appeal. The application was predicated on the ground that the defendant, having executed bond as administratrix, she was entitled to an appeal, to operate as a supersedeas, without any additional bond. The chancellor, it seems, was willing to allow an appeal to be taken, but refused to permit it to operate as a supersedeas, without the party would enter into bond as in cases where the party impleaded as defendant, if not an administrator or executor, would be required to do. No appeal was then taken, but within a few days afterwards, upon petition, an appeal was granted by the late chief justice of this court, to operate as a supersedeas without an appeal bond being given by the party.
The fiat for the appeal is dated 15th April, 1850; but before that time the receiver had taken possession of the greater part of the property embraced in the order by which he was appointed.
Upon petition setting out this fact, and alleging that said receiver had refused, on application, to restore said property to the petitioner, on the the 9th May, 1850, a further order was granted by a judge of this court, by which a writ was issued from the superior court of chancery, directed to the sheriff of Adams county, requiring him to restore to said petitioner the possession of the property which had gone into the hands of the receiver.
The sheriff was restrained from the execution of said writ by an injunction, issued from the superior court of chancery on the 15th of said month.
Hence it is inferred that, as the writ of restitution which issued in this case was awarded by a judge of this court, who had as ample power to perform the act as the court itself, it was not competent for the superior court of chancery to prevent its execution by injunction or in any other mode. In other words, it is insisted that the injunction issued by said court was in opposition to, and in conflict with,' the jurisdiction of the high court of errors and appeals.
We take a very different view of the subject; and that view renders it unnecessary for us to inquire whether the supersedeas, under the circumstances of this case, was legally or illegally granted; or whether its effect was or was not to entitle the appellant to a restoration of the property.
The appeal which had been granted in this case, was taken from an interlocutory order of the chancellor, in no wise connected with the merits of the controversy. It did not remove the cause beyond the jurisdiction of the chancery court; hence the writ of restitution should not have issued from this court, nor have been made returnable here. The fiat for the writ of restitution was properly directed to the clerk of the superior court of chancery, whence the writ issued, and where it should •have been made returnable.
The chief justice, in awarding the writ of restitution, did not act by virtue of any jurisdiction or power which vested in him as a justice of this court. The authority under which he acted was a special power conferred by the statute. The writ of restitution was process of the chancery court, and in granting it the chief justice acted in the capacity of chancellor. Being process of that court, it was necessarily subject to its control. Hence the chancellor or judge, who ordered
If the injunction was improperly granted, the appellant has her remedy in the chancery court, where, upon motion, it may be dissolved, by which means 'the writ of restitution would be left free to fulfil its objects.
Let the motion be overruled.