112 Ky. 267 | Ky. Ct. App. | 1901
Opinion oe the court by
Reversing.
The appellee, as receiver of the Montgomery circuit court, brought suit against appellant Mitchell,. as assignee of M. McCloskey, and L. T. Chiles, surety upon Mitchell’s bond, for $539.03, alleging that at the April term, 1900, an order was entered directing Chenault, a© receiver, to collect from Mitchell that sum, and directing, further,, that if not paid within ten days the receiver should institute a suit upon Mitchell’s bond; that, though demand had been made, the sum had not been paid; that Mitchell had received it as assignee of McCloskey’s estafe, having duly qualified as assignee, and executed bond with Chiles as surety; and.
The case seems to have turned, in the opinion of the circuit court, upon the question whether the order above quoted was a judgment determining the indebtedness of Mitchell to the MeCloskey estate. Whether it was a judgment or not, it was, we think, sufficient authority to Chenault to authorize the bringing of the' suit, and the special demurrer wars properly overruled. The authorities cited upon this point do not sustain the proposition that a receiver, when directed to bring suit for the benefit of a trust fund for a sum claimed to belong to it, has no capacity to maintain such suit. On the contrary, by .section 302 of the Code “the receiver has, under the control of the court, power to bring and defend actions,” etc. The Code provision in terms applies to a receiver appointed in a particular case; but we see no reason why the general receiver of the court, appointed under sections 409 et seq. of the Kentucky Rtatutc-s, may not execute the same powers and perform the same duties when thereto ‘directed by appropriate orders of court. But we do not think that the order relied on was a judgment, ■within meaning of the Code definition (section 368), which provides, “A judgment is a final determination of a right of a party in an action or proceeding.” In the well-considered' ease of Bondurant v. Apperson, 4 Mete.. 30, in an opinion by Judge Bullitt, the question of what constitutes a judgment was considered, and it was held “that a judgment, to be final, must not
The judgment is reversed, and the cause remanded, with directions for further proceedings consistent herewith.