45 S.C. 464 | S.C. | 1895
The opinion of the Court was delivered by
This, which is designated as the “second appeal” in the cases above stated, involves only the question of the validity of five orders, made by his Honor, Judge Aldrich, on the 2d June, 1893, and filed-on the 6th June, 1893, authorizing certain acts to be done and certain expenditures to be made by John H. Averill, receiver of the Port Royal and Augusta Railway Corirpany. It appears from the record that these orders were based upon the report of the receiver as to the condition and needs of the railway, without testimony other than said report, without reference to the master for inquiry, and without notice to appellants, who were parties to the actions. Their validity is assailed substantially upon two grounds: (1) That the cases had been duly removed to the United States Circuit Court for the district of South Carolina, and the State Court had thereby lost jurisdiction; (2) that the orders were made without notice to appellants, who had no opportunity to examine the testimony in support thereof, or to put in testimony in rebuttal, or to be heard, before the orders were granted.
Inasmuch as the first ground has been disposed of in an opinion filed in these cases on the 23d inst., it is unnecessary to consider it here. The respondents, however, m^ke the preliminary question that these orders are not appealable, and we must first dispose of that question.
We do not pass upon, or even consider, the question of the necessity for, or propriety of, the expenditures or acts authorized by these orders, for, under our view, such a question cannot properly be considered until the parties interested have .been afforded the opportunity to be heard, both by testimony and argument, if they so desire. Hence, our judgment vacating these orders will be without prejudice to the right of the receiver to renew his application, upon proper notice, for such or similar orders.
Now, if an ordinary trustee, to whom has been committed the care and management of certain property, should encounter a sudden emergency, threatening the destruction or injury of such property, it would be his duty to take such steps as might be necessary to prevent such loss or injury, relying upon the Court to approve his action, and provide for his reimbursement out of the trust fund for any expenditures properly incurred by him in preserving the property. We do not see why the same principle should not apply to receivers.
The judgment of this Court is, that the orders appealed from be reversed, without prejudice to the right of the receiver to apply to the Court, upon proper notice, for similar orders, or, in case such orders have already been acted upon, to apply to the Court, upon proper notice, to approve and. sanction such acts as may have been done, or such expenditures as may have been incurred, under the supposed authority of said orders.