33 P. 470 | Idaho | 1890
The complaint alleges that on the twelfth day of May, 1887, one Brile obtained judgment for $650.25 in the district court of Shoshone county against defendant the Kentucky Smelting and Mining Company, which was sold and assigned to plaintiffs; that on March 31, 1887, defendant company by a deed of assignment transferred, for the benefit of its creditors,' to defendant Gregory, a certain smelting property described in the complaint; that said assignment was illegal and void;-that
The defendants by their demurrer, and here, claim that plaintiffs had an adequate remedy at law. How and by what means ? They allege the smelting property is all the defendant company had; and, this being in the possession and under control of the court, plaintiffs could not proceed against it. Suppose it had not been in the hands of the receiver, what adequate remedy at law would plaintiffs then have ? All they could do would be to issue execution, and sell the property in pursuance of their judgment. But with this prior alleged invalid assignment of the
The appellants also claim there is a misjoinder of parties defendant, and in that the receiver Lowering is made a party defendant without permission first had of the court appointing him. We think the claim of appellants is correct. The receiver is an officer of the court, in all respects subject to its orders and' directions, and, in so far as his duties as such go, is not amenable to any other power or authority, and at all times is under-the protection of the court, and the property in his hands is-in custodia legis. To permit anyone to bring actions against him concerning such property would be to remove him from the protection of the court, and the property from its possession and control. If the action can be commenced against him, it may proceed to judgment, and the property actually in his possession, by the prior order of the court sold; thus bringing the different orders and judgments of the court on the same subject directly in conflict. If such proceedings can be tolerated, then the appointment of receivers by courts would be a useless ceremony — a farce. The plaintiffs are not without a remedy, for they may ask the court to allow the receiver to be made a party, under /such restrictions as the court deems best for the preservation of the property, of its own authority, and the protection of its officers; or the court may, upon the proper showing being made,, require the receiver, if the property is sold in pursuance of its former order, to hold the proceeds thereof subject to the further-directions of the court. Upon principle, this question seems clear, without the citation of authorities. In support of the-