8 Paige Ch. 373 | New York Court of Chancery | 1840
The objection that the bill was prematurely filed, on account of an alleged irregularity, in proceeding in the supreme court after the service of the order of the circuit judge, is not well taken. Every court is the judge of the regularity of its own proceedings where it has jurisdiction of the case. And if the complainant proceeded irregularly, in issuing his execution in the supreme court, or in procuring a return thereof, notwithstanding the order of the circuit judge, the defendant should have applied to that court to set aside the execution, or the return of the sheriff, for the irregularity. All that it is proper for this court to do, in such a case, is to stay the suit here until the defendant has had an opportunity to apply to the court of law, for relief against the supposed irregularity. And if the defendant neglects to make such an application, or if the application is denied by the court having jurisdiction to examine and correct the supposed irregularity, this court is bound to treat the proceeding as regular ; except in cases of fraud or collusion. (Shottenkirk v. Wheeler, 3 John. Ch. R. 275.)
I think, however, the complainant did not show a case entitling him to the appointment of a receiver, ex parte, before the defendant was in default for not appearing. As a general rule, a receiver is not granted without notice to the defendant, until the time for his appearance has expired;