46 So. 870 | Ala. | 1908
Lead Opinion
The lien, adjudged below to exist in favor of appellees, and to effectuate which the decree appealed from was entered, and against which error is appropriately assigned, depends, it is insisted by appellees, upon the inquiry whether the estate of the McAfee Company was, at the time the writ of garnishment at the suit of appellees, issuing out of the city-court of Birmingham, in custodia legis of the District Court of the Northern Division of the Northern District of Alabama, since and if so, without the previously secured consent of the court so to do, no suit could be instituted, nor process validly run [in or emanating from another court against the receiver of the estate in his hands. — Barton v. Barbour, 104 U. S. 126, 26 L. Ed. 672; High or Receivers, §§ 254, 254a, 254b. Such was the case, unless the proceedings by the referee of that court and of the court were void.
The petition alleged that the petitioners were creditors of the company in a requisite sum, that its principal place of business was within the territorial jurisdiction of the court, and that within four months of
The petition was filed on April 8, 1904, and on that date the clerk of the District Court certified that the judge thereof was absent from the district, which certificate was on that date indorsed “Filed” by the referee. It also appears, from a memorandum indorsed on the petition, that affidavits of the truth of the allegations of the petition were exhibited with it. On April 9, 1904, the referee appointed F. H. Allison receiver of the McAfee Company, requiring appropriate bonds of both the petitioners, or some one of them and of the receiver named. The mandate directed the receiver to take immediate possession of the property of the alleged insolvent and to hold it subject to the orders of the court. In Loveland on Bankruptcy at page 95, it is said: “It is properly within the province of the judge to take possession and release the property of the bankrupt. Yet the referee is clothed with this power, provided the clerk issues a certificate showing the absence of the judge from the judicial district, or the division of the district, or his sickness or inability to act. This language evidently means that the referee has the same power to act in cases properly referred to him as the judge has when no reference is made.” And on page 96 the same author says: “The referee may appoint a
In response to the writ of garnishment from the city court Allison answered, in entire acquittance of himself from any liability, present or prospective, to the McAfee Company, and that he held the property thereof as receiver of the District Court. This answer was not, as here appears, contested in any way. No contest, in accordance with Civ. Code 1896, § 2196, of the answer
The exceptions to the report of the register, questioning its correctness with respect to the alleged, lien of appellees, should have been sustained. The decretal order of May 16, 1906, confirming the report of the register, was therefore erroneous; and the decree of May 29, 1906, is reversed, and the cause is remanded for the further administration of the insolvent estate with regard to the conclusion above expressed.
E ever sed and remanded.
Rehearing
on rehearing.
On a re-examination of the question presented, I prefer to place my concurrence in the reversal of the decree upon the point that money or other personal property of defendant in garnishment in the hands of the receiver, the garnishee, was not subject to the writ of garnishment, and therefore the garnishing creditor, appellee, acquired no lien upon such money or personal property belonging to the debtor under that process; and this is true whether the appointment of the receiver was valid or void for want of jurisdiction. There i.s no statute which authorizes the garnishing of a receiver, and the case must be determined adversely to appellees upon the principle that his debtor could not have maintained indebitatus assumpsit against the receiver if the appointment was valid, and, if void, the debtor had the election to pursue the receiver in an
The right of election pertains only and exclusively to the debtor, and cannot be made by the creditor. If the personalty was not converted into money by the receiver, and his appointment was void, the debtor had the right to pursue him as a trespasser, and as a trespasser the receiver could not be charged as a garnishee. Section 2171 of Civ. Code 1896; Cunningham v. Baker, 104 Ala. 160, 16 South. 68, 53 Am. St. Rep. 27, and cases cited.