January v. Powell & Co.'s Assignee

| Mo. | Oct 15, 1859

Scott, Judge,

delivered the opinion of the court.

This proceeding was begun by a motion to the circuit court to require an assignee in insolvency to hear the claims of certain creditors of the insolvent, which he refused to do.

"We do not see any foundation in the statute concerning assignments for the motion that was made in the circuit court. The matters in which the circuit court can control the assignee are all stated in the statute, and there is no warrant for going further. The assignee is by no means an officer subordinate in all things to the circuit court and a part of that court. It is necessary to preserve the forms of the law. Law can not exist without forms; and without them every thing will depend on the arbitrary will of a judge.

Taking all the circumstances into consideration, the as-signee should have heard the claims. It would have been better if the substituted assignee had given a new notice. As there is no warrant for this proceeding in the law on the subject of assignments, the proper course would have been to apply to the circuit court for a mandamus on the assignee. That writ would have been sustained on general principles.

This judgment will be affirmed, and the course indicated will be at the option of the parties.

Judge Ewing concurs.