Hetzel v. Fadner , 162 Ill. App. 639 ( 1911 )

Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Fadner and Hetzel were partners. Hetzel filed a bill in the Circuit Court to dissolve the partnership, and for the appointment of receivers and an accounting. Receivers were appointed of the partnership property. Subsequently, Fadner began a suit at law in the Superior Court against Hetzel and the two persons who had been appointed receivers, and their attorneys, alleging in his declaration that the defendants, conspiring together to injure and destroy his business and to receive and keep his goods, chattels and effects, and falsely and maliciously pretending they had a right to do so in behalf of the two defendants who were receivers in the chancery suit of the assets of the partnership, and well knowing that they had no right or authority to do so, came to the office of the plaintiff, and with force and arms, seized, took and carried away a large quantity of the goods and chattels belonging to plaintiff, and of great value, and converted the same to their own use.

The second count of the declaration charged the defendants in trover for the conversion; the third count in trespass; and the fourth in case. May the Circuit Court, having jurisdiction of the equity case, and consequently of the partnership property, enjoin the prosecution of this suit at law? We think not. Upon the appointment of the receivers, they became vested with the title to the partnership property of the partners, but not to the individual property of Fadner. If the receivers wrongfully assumed to take and hold property not embraced in the order of their appointment, they became trespassers and subject to an action by the rightful owner for damages. 34 Cyc. 410; Hills v. Parker, 111 Mass. 508; Kirk v. Kane, 87 Mo. App. 274.

Receivers are not protected by their official character against an action in tort. If wrongdoers, they are liable personally, and leave of court to sue them for such misconduct is not necessary. If they take property, not included in the litigation, they become liable as trespassers, and an order of the court, authorizing the taking of property not included in the litigation would be beyond its jurisdiction, and no protection to the receivers. Anderson on Receivers, 329; Gutsch v. McIlhargey, 69 Mich. 377; Kenney v. Ranney, 96 Mich. 617; Bowman v. Hazen, 69 Kans. 682; 77 Pac. 589.

Appellees urge, among other things, that appellant by coming into the chancery cause by petitions alleging ownership (individually and as trustee) of the property in question, had elected his forum, and, therefore, could not go into another to procure the same relief. But we do not find that the questions raised in the suit at law have been or can be litigated in the chancery cause.

The gist of Fadner’s suit at law for damages is that the defendants therein named intentionally, wilfully and- maliciously took his- individual property for the purpose of ruining his business, and knowing that it had no connection with the partnership assets. To recover in this suit, it will be necessary for the proof to sustain these allegations. If the plaintiff cannot prove the averments in his declaration, he must fail, but he has a right to have the questions heard and determined by the jury.

The injunction was improvidently issued, and the order granting it will be reversed.

Injunction order reversed.