The suit of Downing was commenced by summons, without complaint, and Smith was not described therein as receiver;. Smith consequently could not, until after he had appeared and obtained a complaint upon demand made, know that he was sued as receiver; the fact that he has appeared does not, therefore, waive the objection he now raises that he has been sued as receiver, without leave of the court first obtained. Since he became aware that that suit was brought against him as receiver, he has taken no steps therein.
It is necessary that a party desiring to sue a receiver, should first obtain leave of the court that appointed the receiver.
Under the circumstances of this case, the court might possibly have refused such leave, as from the papers used on this motion, it appears that said Downing moved-this court for the same relief that he subsequently sought to obtain by his action, and his .application was denied.
Motion granted, adjudging said Downing guilty of contempt, and fining him fifty dollars as an indemnity to the receiver for his costs and expenses; and staying said Downing’s proceedings in the action commenced by him against the receiver, with leave to said Downing, on payment of said fifty dollars, .to move for leave to prosecute his action.