Weimer v. Scales

74 Miss. 1 | Miss. | 1896

Wooes, J.,

delivered the opinion of the court.

Is an attachment maintainable in case of levy after the execution of an assignment but before the assignee has filed his petition and bond? Section 117, code of 1892, declares that the assignee £ £ shall, before he enters upon the discharge of his duties, after taking possession, and within twenty-four hours thereafter, file a petition in the chancery court, ’ ’ etc., to which petition the assignor and all of his creditors must be made parties. Section 118 requires that bond must be filed with the petition, which is to be conditioned and approved as therein directed, and § 119 declares that, upon the filing of the petition and the approval of the bond, the assignee shall become a receiver of the court, and shall be entitled to all the rights and privileges and subject to all the duties and obligations of other receivers in equity, and £ £ shall not be sued in any other court, save by permission of the court or chancellor, in vacation.5 ’

The code chapter on the subject of assignments has some peculiarities. The assignee is not made receiver from the date of the execution of the assignment. He becomes such officer of the chancery court only after he has filed his petition and bond and the latter has been approved. Thereafter he is entitled to the rights and privileges of a receiver, and may not be sued in any other court, save by permission of the court whose officer he has become, or that of the chancellor in vacation. Furthermore, there is no requirement that the assignment shall be filed as a step in the proceedings by which the chancery court acquires jurisdiction of the assigned estate, nor, indeed, that it shall be filed at all by the assignee. And again, the chapter, while committing the administration of the estate to the chancery court, nevertheless invites attack upon the assignment itself by creditors of the assignor.

Now, in the present case, before the assignee had filed his petition and bond, and before any step had been taken by him to give the chancery court jurisdiction (for the filing for record of the deed of assignment in the proper office was, as the transcript perfectly shows, done simply to comply with our registry laws), the appellants sued out their attachment writs and had the same properly levied upon parts of the assigned property. And this they had the right to do. For, while the chancery court is clothed with the exclusive jurisdiction in cases of assignments, the jurisdiction had not been acquired when the attachment writs were levied.

But since the chancery court of Noxubee county has now acquired jurisdiction of the estate assigned, the fund must be administered under the direction of that court, and the decision of the questions involved in the attachment suits should be drawn to the court having jurisdiction in the administration of the estate. The rights of the parties should be determined in the equity court. The attachment suits should be drawn into that court, but the liens acquired, if any, by the levies of the attachments should be preserved and enforced. See Pollock v. Okolona Savings Institution, 61 Miss., 293.

Reversed a/nd remanded.