59 P. 1072 | Kan. | 1900
The opinion of the court was delivered by
This was a garnishment proceeding wherein the executors of the Hill estate sought to reach and appropriate an alleged debt of the Missouri Pacific Railway Company to the Fitzgerald & Mallory Construction Company, a debtor of the plaintiffs. They brought an action against the construction company on December 24, 1891, and at the same time procured the issuance of a garnishment summons, which was served on the railway company on the same
As a further answer, it was alleged that a proceeding was begun in Nebraska in 1888 by a stockholder of the construction company, in which, among other things, an accounting between the railway and construction companies was asked, which finally resulted in a judgment against the railway company for $224,-000 ; that a receiver was then appointed, and the railway company was directed to pay to him that sum, and that in obedience to the order and decree of the
The proof showed the bringing of the proceedings in Atchison county and the appointment of a receiver there long prior to the commencement of the garnishment proceeding. It likewise showed the commencement of the action in Nebraska before the service of the garnishee summons, and that a judgment was there rendered against the railway company for the amount of its indebtedness to the construction company and which the railway company was obliged to and did pay. The railway company insists that it should not be required to pay its indebtedness a second time, and that, as the assets of the construction company and the debt in question were in the custody of the Atchison county district court prior to the attempted garnishment, the debt was not subject to garnishment nor within the reach of process issued by the Cowley county district court.
The commencement and pendency of both proceedings were alleged and brought to the attention of the trial court in this proceeding, and from the testimony in the case it must be held that the plaintiffs below acquired no right to the debt in question by the garnishment proceeding. Prior to that time, as we have seen, a court of equity in Atchison county had appointed a receiver who by the order was invested with the possession and care of the property and assets of the construction company and authorized to bring
To prevent unseemly conflict between courts, the law gives to the court which first acquires jurisdiction of such assets the power to retain them until the end of the litigation, and until a final and equitable disposition of the same has been adjudged. (The State v. Miller, 54 Kan. 244, 38 Pac. 269.) Non-interference in such a case is a principle of comity, born of'necessity, and courts are careful to avoid any violation of the same. It has been said that when a court “ takes into its jurisdiction a specific thing, that res is as much withdrawn from the judicial power of the other as if it had been carried physically into a different
It is contended that the proceedings in the Atchison court were collusive and fraudulent, and for that reason the plaintiffs below were not affected by the receivership. This claim is based principally on the fact that one of the receivers was a-son of an attorney for the railway company, and also on the relations occupied by the attorneys in the several proceedings in that case. These facts, however, fall far short of warranting an implication of fraud, and the trial court, while it recited the facts, did not find fraud or collusion. Attention is also called to the fact that collusion was charged in the pleadings in the Nebraska litigation between the same parties, but that court, while it found that the railway company was indebted to the construction company, did not find that the proceedings in Kansas were collusive. Whether the matter was taken out of the issues or
“ Courts of equity will not permit any unauthorized interference with the possession of their receivers to be justified upon the ground that the appointment was ill advised or illegal, and that the parties interfering were, therefore, not bound to regard it.”
Where a receiver is appointed by a court of competent jurisdiction and the court has assumed control and administration of an estate, the orderly and proper procedure in a court of justice is to go to the court appointing the receiver and there raise the questions of invalidity or irregularity in the appointment. This rule is held to apply not only as to property actually in the receiver’s possession, but also to property which he has been appointed to receive but which he has not reduced to possession. (High, Rec. § 143 ; Beach, Rec. § 241.)
The claim is made that because the company was an Iowa corporation, which cannot be dissolved by a proceeding in Kansas, the Atchison court was without jurisdiction. It has jurisdiction, however, to take the control of the property within its jurisdiction, make an accounting between the parties, and-to authorize the collection of the debts due to the company by its receiver. So far as seen, the receiver was duly appointed by a court authorized to make the appointment, and proceedings were taken to sequester the
The debt due from the railway company not being subject to garnishment, the process issued in Cowley county was therefore, a nullity, and the conclusion of that court holding the railway company as a garnishee cannot be sustained. Its judgment will be reversed and the cause remanded for further proceedings.