Simpson v. M'Laughlin , 4 Stew. & P. 88 ( 1833 )

Per Curiam.

The motion in this case, has not been of so definite a character, as to demand any opinion of the Court: we are willing, however, to indicate our views upon the points which have been made by the counsel of Simpson; but, with the understanding, that the practice is not to be considered, so settled, by any thing which may now .be said, as to prevent the several questions from being considered open for argument, whenever they may occur again. The reason of this, is, no counsel has resisted the motion.

It appears, that some terms ago, a decree was made by the Circuit Court of Dallas County, in favor of Simpson, the complainant, against M’Laughlin, the defendant, for a considerable sum of money, and by which, beside, a receiver was appointed, 'to receive from M’Laughlin, the books, notes, and other papers, and the possession of a ware-house — all being the property of a late firm, in which the parties had been partners.

The decree only decided, with respect to the rents of the ware-house, &c. to the time at which the suit was instituted. From that decree M’Laughlin, appealed to this Court, and, at the last term, it was affirmed.

At the succeeding term of the Circuit Court, a motion was made to appoint, a new receiver — the one first appointed, having decline'd acting — and for an attachment to compel M’Laughlin to deliver up the papers, &c. The Court refused to make any order in the case; assigning as a reason, as is stated, that this Court having entertained jurisdiction on the appeal, the decree must be final, and no subsequent order could be made.

Whether the decree was a final one, or not, was not discussed in this Court. There can not be a doubt, but that the Circuit Court should proceed to enforce the decree, which has been made by it, as if the case had never been in this Court. The decree has not been reversed; therefore, there is nothing to. prevent that Court from proceeding. An order has been made, appointing a receiver. If he had acted, M’Laughlin might have been compelled, by the process of the Court, to deliver the books, &c. to him : as he has not, another may be appointed in his slead, and the same course pursued,-with respect to him.

As regards the rents of the ware-house, and other receipts of M’Laughlin, not embraced in the decree, or which have cometo his hands, since it. was rendered, it may probably be necessary to file another bill.

The entry will be, that the motion is overruled.