32 W. Va. 444 | W. Va. | 1889
This action ivas commenced before a justice of Pleasants county in the name of Simpson Jones for the use of T. W. Haines against B. H. Browse, special receiver for Jones & Haines, to recover$300.00, money due by contract evidenced by an account in writing. The account filed is for $386.00, to which is attached the affidavit of said Jones stating, that the account is just, and that no part of it has been paid. Judgment was rendered by default by the justice against the
The action and proceedings in this case, both before the justice and in the Circuit Court appear to be anomalous, irregular and erroneous in almost every particular. The claim, upon which the action is founded, seems to be for a sum in excess of the’jurisdiction of the justice.- The account filed is against and for services rendered to “,J. A. Armstrong and the Monitor Tow-Boat & Lumber - Company,” in which the name of the defendant nowhere appears ; and, while the defendant is sued as special receiver for Jones & Haines, the judgments rendered by both the justice and the Circuit Court: seem to be agai'nst the defendant personally. The Circuit Court after dismissing the defendant’s appeal proceeded not only to affirm the judgment of the justice but also to render its own judgment against the defendant, and then inhibits the plaintiff from suing out
The defences set up by the defendant in this plea or answer are two: First, non-assumpsit, and second, that the defendant could not be sued as special receiver without leave of the court, by which he was appointed. The Circuit Court denied the right of the defendant to make either of these defences, when as a matter of law either of them, if proved, was a complete answer to the action. If the defendant never assumed the liability, for which he is sued, then certainly there could be no recovery against him either as receiver or personally.
The second defence is, that the defendant being a special receiver and as such the mere agent or hand of the Circuit Court of Wood county in respect to the liability, for which he is sued, the action against him is virtually an action against said court; and therefore he is not suable in any other court, without the leave of the court, which he represents. It is broadly laid down by High on Receivers, § 254, that it is in all cases necessary, that a person desiring to bring suit against a receiver should first obtain leave of the court appointing him. In Barton v. Barbour, 104 U. S. 126, it was held, that “no suit can be maintained against a receiver of a railroad company, who is by order of court conducting the business of a" common carrier thereon, for injury to persons or property caused by his negligence or that of his-servants, without leave of the court, by which he was appointed.” This decision was affirmed in Melendy v. Barbour, 78 Va. 544. Every suit against a receiver as such is a proceeding set on foot to reach the assets in his hands and hence in the hands of the court, that ap
It is no sufficient answer to say, that in the case at bar no such attempt was made, but that instead thereof leave was given to petition the court holding the fund for payment of the judgment, because this simply proves, that the court, which rendered the judgment, appreciated the difficulties, by which it was surrounded, and therefore refused to render an unconditional or enforceable judgment.
For these reasons the judgment of the Circuit Court must be reversed, and the case remanded for further proceedings.
"Reversed. Remanded.