Hochrein v. Gunther ( 1934 )

Edmund E. Gunther was a florist and plaintiffs are his judgment creditors on a labor claim. Gunther Gardens, Inc., took over all his assets, paying Gunther in stock which he was endeavoring to sell in order to pay his creditors. Plaintiffs filed a judgment creditor's bill and the Ann Arbor Trust Company was appointed receiver of the corporation without notice to defendants. A few days later Gunther filed a petition in bankruptcy and Gunther Gardens was subsequently adjudicated a bankrupt. The receiver's final account showing disbursements of $733.88 was ordered allowed, from which order, according to appellants' brief, this appeal is being prosecuted by authority of the bankruptcy court for the benefit of the trustee in bankruptcy and the creditors of the corporation.

Appellant Gunther Gardens, Inc., says the sole question presented by this appeal is whether the court may, upon exparte application, appoint a receiver of a corporation in a proceeding instituted neither by a stockholder nor a creditor of the corporation. Appellees claim the sole question involved is: Has a court of equity the right to discharge a receiver appointed by it ex parte when the said receiver has acted in accordance with the court's order and the good faith and propriety of its acts are not questioned?

No application was made for leave to appeal from the interlocutory order, and no leave has been granted. Court Rule No. 60 (1931), and 3 Comp. Laws 1929, § 15508.

The Chief Justice has so recently discussed the matter ofex parte appointments of receivers in Tuller v. Wayne CircuitJudge, 243 Mich. 239, that we shall not restate our views. The instant application resulted in a receiver being appointed for a corporation of which petitioner was neither a stockholder nor a creditor.

Appellants describe plaintiffs' bill of complaint as a judgment creditor's bill. By its prayer a decree is sought determining that the corporate defendant holds Gunther's assets as a trustee for his creditors. 3 Comp. Laws 1929, § 15129, provides for the appointment of a receiver for the property of the judgment debtor but the receiver does not have authority over property belonging to others until and unless the alleged fraudulent conveyance has been duly set aside. 3 Comp. Laws 1929, § 15136, governs appellate procedure in such matters. Nowhere do we find any provisions for appeal except from a final order. The order allowing the receiver's account in the instant case is not a final order, for the reason that there has been no final determination of the issues raised by the bill. It is true that the record does not contain the answer of the defendant corporation. In fact, the record contains little except testimony pertaining to the account.

Without leave to appeal as required by Court Rule No. 60 (1931), we will not pass upon the order allowing the final account.

The appeal is dismissed, but without costs for the reason that the controlling question is not raised by the brief of appellees.

NELSON SHARPE, C.J., and POTTER, NORTH, FEAD, WIEST, BUTZEL, and EDWARD M. SHARPE, JJ., concurred.