88 Va. 942 | Va. | 1892
delivered the opinion of the court.
As the proceedings by mandamus in the second of these causes arose out of the action of the honorable circuit judge in the first cause, it has been thought best to hear and consider them together.
The facts deemed necessary for a proper understanding of the points to be adjudged are as follows:
On the 6th day of June, 1890, Jonas Wilder and others presented to the Hon. 3). W. Bolen, judge of the fifteenth judicial circuit, their bill of injunction, praying that the defendant corporations, their agents, officers, &c., be restrained from collecting any moneys due said companies, &c., and for the appointment of a receiver, &c.
On the same day an injunction was awarded by the said judge, and J. M. Bailey, one of the complainants, was appointed receiver, the order appointing the receiver pro
On the 8th of August, 1890, the defendants appeared, by counsel, before the Hon. John A. Kelley, in whose court in Washington county, the cause was pending, and filed their petition, supported by affidavit, setting out that they had been given no notice of the motion for the injunction and appointment of a receiver; that the material allegations of the bill were false; that the bonds required of the complainants were wholly inadequate to protect the defendants; that the person appointed receiver was a non-resident, without visible means or property; and that the defendants were able and willing to-execute a good bond, in such penalty as your honor may direct, conditioned to save the complainants harmless, and to pay and discharge any decree that they may finally obtain in said cause.
Upon the filing of this petition Judge Kelley entered an order enjoining the execution of so much of the former order as required the defendants in the suit to deliver, and the receiver to take charge of, the property of the defendant companies, for a period of time limited to twenty days, in order to give the defendants.time to give notice of a motion to dissolve the injunction.
Subsequently, on the 16th day of August, 1890, the plaintiffs, without notice to the defendants, presented to Judge Kelley a second bill, in which they set out the original bill, and the proceedings thereunder and.the orders entered, and, as additional matter happening since the filing of the original bill, they alleged that the defendants, after knowledge of the injunction order and before the receiver could take possession, drew out of bank some six or ten thousand dollars, and sent the same out of the state, &c., &c., and prayed for all the relief prayed for in the original bill; “ that an injunction be awarded by your Honor to restrain the operation and effect of the said order entered by you in. this cause on the 8th day of August,,
Hpon this bill Judge Kelley, on the 16th of August, 1890, endorsed “ Injunction refused,” and upon the same day, without notice to the defendants, this bill was presented to the Hon. R. A. Richardson, one of the judges of this court, who awarded an injunction in accordance with the prayer of the bill, restraining the defendant corporations and persons named from doing any act in the management of said companies, &e., until the further order of the court, appointing said Bailey receiver, and ordering the clerk of the circuit court of Washington county to issue a writ to the sheriff', directing him to put the said receiver in possession of the property and effects set forth in said order, &c. And from this order this appeal has been taken in the case of Virginia, Tennessee and Carolina Steel and Iron Co. et als. v. Wilder et als.
After the injunction had been awarded by Judge Richardson, the receiver being obstructed in getting possession of the property and effects of the defendant companies, applied to the judge of the circuit court to enforce the orders of the appellate judge, by proper directions to the sheriff. And Judge Kelley declining to enforce these orders, this court, on the 16th day of July, 1891, upon the application of the plaintiffs, Jonas Wilder and others, awarded a peremptory writ of mandamus, directed to the Hon. John A. Kelley, Judge of the Sixteenth Judicial Circuit, requiring and commanding him to enter and enforce the aforesaid order of the appellate judge.
On the hearing of the application for the mandamus the majority of the court, from whom I had the misfortune to differ, upon the assumption that it was a matter in which they
But assuming for the sake of argument, that an appellate judge has the power to appoint a receiver, I do not think that any sufficient case is made by the bill for the relief prayed for. The debts claimed by the plaintiffs are mere open accounts and not liens upon the property sought to be placed in the hands of a receiver. Their aggregate amount is small as compared with the large properties they seek to wrest from control of the corporate authorities. And undue haste and failure of the plaintiff to notify the corporate authorities in advance of their motion, suggests the idea that they were afraid to have their claims considered on the threshhold. Besides, it is a pregnant circumstance in this case that the defendant corporation have had no opportunity to contest these claims although denied by their petition on affidavit, and it may be that upon a full investigation no such claims exist. In such a case, where the claims are small in comparison with the property, sought to be sequestrated, and unascertained, and no notice of the application has been given the defendants, and an offer is made to secure those claims should they be subsequently established, by the giving of any bond that may be required, it seems to me that it would be utterly at war with a sound judicial discretion to take the property from the hands of those who
For these reasons, the order or decree complained of must be reversed, the injunction dissolved, and the receiver discharged, and the first-mentioned case must be remanded for such further proceedings as the parties maybe advised to take; and the proceedings in the mandamus or contempt ease must be dismissed.
Laoy, J., and Richardson, J., dissented.
Decree reversed and writ denied.