Hardy v. McClellan , 53 Miss. 507 ( 1876 )

Campbell, J.,

delivered the opinion of the court.

McClellan presented a petition to the Chancellor, stating that he had sold land to Moses Hardy on credit, and that Hardy had given him notes for the purchase-money, and had taken possession of the land, and died, without paying any part of the purchase-money; that Hardy’s estate was insolvent, and had no administrator, and the land was liable to trespass and damage ; that the petitioner had prepared and would file in a few days “ his bill to enforce the contract, and have the land sold to pay the purchase-money.” Therefore he prayed the appointment of a receiver to rent the land, and collect the rent, and hold subject to the order of the court, to be paid to the petitioner, if he should succeed in having the land sold under his bill to be filed. There was no party defendant to this petition. It was presented to the Chancery Court on the 7th January, 1874, and on that day its prayer was granted, and an order made for appointment of a receiver. On the 17th January, 1874, on motion of attorneys for the heirs of Moses Hardy, tlie order appointing a receiver was set aside, and after the order setting aside the order for a receiver, and in continuation of it, is the folio wing: “ And the complainant gives notice that he will apply for the appointment of a receiver ; and the said defendants, being in court by their solicitors, accepted said notice as sufficient; and it is further ordered that said application be heard in vacation ten days from this day, or at such time as may be agreed upon by the parties.”

On the 23d October, 1874, a decree was made for the appointment of a receiver, who was directed by the decree to take into his possession the cotton raised on the place on which said Moses Hardy lived at the time of his death, and sell the same, and hold the proceeds subject to the order of the court, &g. There were no parties and no notice, except as shown above. In April, 1875, in a case styled “ J. H. McClellan v. Moses Hardy's Heirs,” the complainant moved the court for an order to Bryan, receiver, to pay to the complainant the amount in his hands as said receiver. This motion was granted, and the appellant, who is the widow of Moses Hardy, petitioned said court to rescind the order granting said motion, and to permit her to contest the petition of the appellee for a receiver, &e. The appellee demurred to the petition of the appellant; and his demurrer was sustained, and the petition of the appellant dismissed. There was a mass of testimony taken on the motion to order the receiver to pay to the appellee the money in his hands ; and an elaborate decree was rendered, abounding in recitals of what the court found, but it is unnecessary to notice these, as the whole proceeding, in its beginning, progress and termination, was novel, extraordinary and unwarrantable. The court had no right to appoint a receiver on the ex parte petition of the appellee. He had no case in court. He had not filed his bill, although his petition shows he had it prepared and ready, and intended to file it in a few days. The order appointing a receiver was without notice, and on its face does not conform to the petition, which was to have a receiver to take charge of land, whereas the order appoints one to take cotton. It may be stated generally, that to authorize the appointment of a receiver there must be a suit pending, and ten days’ notice of the time and place of making the application must be given to the opposite party, unless it should be made to appear that an immediate appointment is necessary. Code, § 1052. Where it is made to appear that an immediate appointment is necessary, it may be made without notice to the “ opposite party,” but there must be a case in court, and an opposite party to warrant the appointment of a receiver. Whitehead v. Wooten, 43 Miss. 523.

It appears in evidence, on the motion to require the receiver to pay the money from the cotton to the appellee, that the appellee did exhibit his bill to enforce his claim for purchase-money on the land on the 17th March, 1874; and, as it is in evidence that Moses Hardy died leaving a widow and two children, it must be supposed they were made parties to this bill. But the order for appointment of a receiver was made in pursuance of the ex parte petition, filed more than two months before the bill was filed; and although the order appointing a receiver was made more than six months after bill filed, it was “ upon the renewal of the application pending,” and in pursuance of the petition; and no reference was had to the pending suit, and no notice was given to the “ opposite party;” and it does not appear that the opposite party appeared in person or by counsel. The children, who were infants, could not appear by attorney.

The order appointing a receiver ought not to have been made.

The decree ordering the receiver to pay over the money, and the decree dismissing the petition of the appellee, and the order appointing a receiver, are severally reversed, and the petition for the appointment of a receiver is dismissed, and the appellee will be taxed with all the costs of the proceedings founded on said petition. No opinion is expressed or intended to be intimated as to the rights of parties to the fund in the receiver’s hands. The court has power to require the receiver to account, and the rival claimants to the money in his hands may assert their claims by such proper proceedings as they may be advised to institute.