State v. Port Royal & A. Ry. Co.

84 F. 67 | U.S. Circuit Court for the District of South Carolina | 1898

SIMONTON, Circuit Judge1.

This is an interven! ion by J. X». Bates, claiming payment of a certain judgment obtained by him against the ;Pórt Royal & Augusta Railway Company. Bates was the owner of a Jersey bull, wbicb be alleged was killed on tbe line of tbat road, by tbe train of tbe road, on November 30,1892. He put bis claim in •:suit. before a trial justice of Barnwell county, making tbe railroad company defendant, and obtained a judgment, wbicb was entered October 26, 1893, for $90 and costs. Tbe defense rests upon the fact that at the date of the accident and at the time of the suit the road and its property were in the hands of Comer, receiver; that as a consequence of this the service of process upon an agent of the receiver was not service on the company, — in fact, no service at all, — 'and that ■the judgment binds neither the company, which was named as a party, nor the receiver, Comer, who was not sued; and that in no event can the petitioner claim for any demand against Comer, receiver, because the true construction of the order of this court renders the purchaser at foreclosure sale liable only for claims against Averill, receiver. The case was defended before the trial justice by a Mr. Connor, claim agent in the employment of the receiver, was continued at his instance, and on the day to which it was continued judgment was given after trial.

When an insolvent corporation is put into the hands of a receiver, this only effects a change in the management of the property. The receiver is substituted for those who theretofore had governed the corporation, but the title is not changed. Union Bank of Chicago v. Kansas City Bank, 136 U. S. 223, 10 Sup. Ct. 1013. Nor is the existence of the corporation destroyed. Bank of Bethel v. Pahquipe Bank, 14 Wall. 398. So the suit will lie against the corporation. But, inasmuch as the receiver was put in charge of and administered all the affairs of the corporation, service of process was properly made upon him through his agent. Davis v. Gray, 16 Wall., at page 217.

The agent of the receiver appeared in the case, and defended. The trial was had and judgment rendered. This judgment, having been entered on an action for injury to personal property brought within 12 months from the date of the cause of action, has a lien prior to the mortgage, even if it is not a claim against the receivership.

It is contended, however, that the claim is not against Receiver Av-erill, but against Comer, receiver. But a receivership is not personal; it is continuous. The individuals holding it represent a condition of things created by the court. As is said in McNulta v. Lochridge, 141 U. S. 331, 12 Sup. Ct. 11: “The receivership is continuous. It is analogous to a corporation sole. The action is not against the receiver as a person, but against the receivership. So, a receiver may be sued for the act of his predecessor, without leave of the court.” So, in whatever aspect we may view this case, either as a suit against the corporation or as against tbe receivership, this judgment has a paramount claim. Indeed, it has been held by a court of high persuasive authority that a judgment rendered against a receiver in a state court in an action at law is conclusive as to the existence and the amount of the plaintiff’s claim, but the time and maimer of its payment are to be controlled by the court appointing the receiver. Dillingham v. Hawk, 9 C. C. A. 101, 60 Fed. 494.

Let the petitioner have a decree for the amount of his judgment and interest, with costs.