7 Wash. 77 | Wash. | 1893
Lead Opinion
The opinion of the court was delivered by
The relator seeks the interference of this court by writ of prohibition against the superior court of Snohomish county and George Brackett, a receiver appointed by that court. The facts are these: The relator is a creditor of one Gordon, who has left the state, and upon certain of whose property the relator has caused an attachment to be levied by the sheriff of Snohomish county. Subsequently to the levy, upon the petition of certain other creditors of Gordon, the court appointed a receiver of all of his propei'ty, in the person of the respondent Brackett, whom it directed to take possession of Gordon’s property, and hold it for distribution under the orders of the court. The receiver being about to attempt to take possession of the property levied upon by the sheriff under the relator’s attachment, the relator applied to the court by what was denominated a petition in intervention for an order directing the receiver not to take possession of the attached property. This petition took the form of an objection to the court’s appointing a receiver at all under the facts alleged in the pleadings of the other creditors. The court denied the application of the relator, and now the respondents object to the prohibition on the ground that
Put the respondents oppose this application upon other grounds, viz.: The answer of the judge of the court and the receiver went to the effect that it is not true, as alleged by the petitioner, that they intend to take the property in the hands of the sheriff from that officer and distribute it, with other property of Gordon, -pro rata among all his creditors; but, they answer, that it is the intention to fully recognize the rights of the relator under its attachment, whatever they may be. Treating this answer as an admission that the relator’s lien is to be fully recognized, and that it will be entitled to a preference payment out of the proceeds of the property in the sheriff’s hands, it is yet not sufficient. When a creditor lawfully obtains an attachment against property by levy of the writ by the sheriff, the law gives him, not only the right to have his debt paid out of the proceeds of that property, but it also gives him
The relator also asks that the writ be extended to. cover all the proposed action of the receiver in taking possession of other property of the debtor Gordon, and to that of the court in disposing of that property, on the ground that •the relator is seeking to have other of Gordon’s property seized under its attachment, and that the possession of the receiver of such property will prevent such additional levy. This position it takes upon the theory that the entire proceeding by which the receiver was appointed was void. .But the answer to this demand is, that if the appointment of the receiver was absolutely void, there is nothing to prevent the sheriff from levying, under the attachment, on the property of the debtor, even though it be in the hands of the receiver; and therefore that part of the petition is denied.
Let the writ issue to the extent herein indicated.
Scott and Anders, JJ., concur.
Concurrence Opinion
(concurring). In my opinion it is not necessary to decide as to the right of the relator to appeal, for
Dunbar, C. J., dissents.