Gibson v. Martin , 8 Paige Ch. 481 ( 1840 )

The Chancellor.

The hill, upon which the injunction in this case was granted, being excluded from consideration on this appeal, it is difficult to ascertain precisely to what property the receivership relates ; or how far the order affects any interests claimed by the defendant, so as to authorize him to appeal if such an order was the proper-subject of appeal. I think, however, the defendant has mistaken his remedy in supposing that an ex parte order that is merely irregular, and which, therefore, would be set aside or modified as a matter of course upon a proper application to the same court, can be appealed from. Such a practice would compel the appellate court to correct all the irregularities of the proceedings in the court below, at great expense to the parties. Although the language of the statute relative to appeals from orders made by vice chancellors is general, it never could have been the intention of the legislature to authorize an appeal from such an order ; instead of applying to the court below to set aside the order for irregularity. If the vice chancellor, upon a proper application, should refuse to set aside or modify such an order, his decision denying the application would form a proper subject of appeal,, and would be corrected by this court.

The order in question was clearly irregular, in the form in which it was entered, whether it was founded upon the affidavit alone, or upon the affidavit in connection with the facts stated in the bill. It appeared that the subpeena was served on the defendant on the 31st of July, only four days before the application. He was, therefore, neither proceeded against as an absentee, nor was he in default for not appearing; so as to entitle the complainants to proceed without notice, except in a case of emergency, where the property would be likely to be destroyed before the defendant could have notice and be heard upon the application. (Sandford v. Sinclair, ante, p. 373.) That was not the case as to the property generally to which this receivership relates, though as to the wheat which had been cut and not secured, and as to that which was then ready to cut, it would have been proper, on the affidavit presented, to have appointed a temporary receiver to secure it from loss ; or to have granted an order to show cause immediately, before the vice chancellor, why a receiver should not be appointed.

The effect of the order which was made, however, was to deprive the defendant of the possession of the farm, and of all the crops which were then growing, or which had at any other time been raised thereon by him, without giving him a chance to be heard. It would therefore be improper either to affirm or reverse this order on the appeal. But the appeal must be dismissed, with leave to the defendant to apply to the vice chancellor, upon due notice to the adverse party, to set aside the order appealed from, for irregularity, or to modify it; so far as it affects the rights and interests of the defendant, and as may appear to the vice chancellor to be proper, upon the hearing of both parties before him. And under the circumstances of this case I shall not charge either party with costs upon this appeal.