Thompson v. McCleary , 159 Pa. 189 ( 1893 )

Opinion by

Mr. Justice Thompson,

The special injunction from which this appeal was taken was granted to restrain appellant McCleary, the sheriff of Allegheny county, and appellant R. B. Ivory, trustee in a certain judgment confessed by G. C. VanKirk, trading as G. C. VanKirk & Co., from interfering with the possession of certain goods by the appellees as receivers of the Northwestern Hardware Company, appointed by the court of common pleas No. 3 of Philadelphia county. The bill avers that the company carried on business in Pittsburgh through G. C. VanKirk as its agent, whose agency and his compensation for performing the duties as such agent are set forth in the agreement, a copy of which is made an exhibit annexed to the bill. That the merchandise and fixtures in the store conducted by him as such agent are the property of the Northwestern Hardware Company, and passed to the appellees as its receivers who were duly appointed. That G. C. VanKirk confessed a judgment in favor of appellant R. B. Ivory as trustee for certain creditors; that execution has been issued upon the same, and the sheriff has taken possession of the goods.

If VanKirk was such agent as averred, the attempted transfer of the merchandise, etc., by the confession of judgment without any authority, might call bjr injunction into active exercise the powers of a court of equity. But it is contended that the Northwestern Hardware Company having permitted VanKirk to do business under the name of G. C. VanKirk & Co., having held out G. C. VanKirk as a partner, that the creditors having sóld goods to him as such without knowledge of the agency, that the said company having dealt with him for the„sale and purchase of goods, that G. C. VanKirk having paid all the checks and clerk hire and having bought goods upon the faith of his being a partner of said G. C. VanKirk & Co., the Northwestern Hardware Company, and consequently the appellees, its receivers, are estopped from denying that he was such a partner. It may be that these creditors may hereafter establish an equity which will protect them, but on July 5th, five days prior to the confession of the judgment in question, this merchandise, together with other property of the company, passed into the custody of the appellees, who had been appointed receivers. Having done so, such possession will not be interfered with by a judgment confessed in a different court and execution issued thereon.

In Robinson v. Atlantic and Great Western Railway Co., 66 Pa. 162, it is said by Mr. Justice Agnew: “It (the property) was in gremio legis, in legal custody, and to permit it to be levied and sold under the process of the court of common pleas would at once raise a conflict of jurisdiction, and interfere with the right of the receiver of the Supreme Court to manage the property under his appointment. If the property might be taken piecemeal from the custody of the receiver, the remedy of the creditors under the mortgage would become worthless, or at least greatly imperiled. Ample authority has been cited by the defendants in error. If a creditor believes that the property was not legally mortgaged, or for any good reason should not pass into the hands of the receiver, his duty is to apply to the court having appointed the- receiver to ask its discharge out of custody in order that he may proceed against it. For these reasons we think the court below was right in setting aside the levy and execution.”

Whatever equities therefore the appellant trustee for these creditors may have, they ca'n be worked out in the court appointing the receivers, and the learned judge very properly added to his decree: “ This decree to be without prejudice to their right to apply to said court for the enforcement of any legal or equitable rights which they or either of them may have against, said property.”

Decree affirmed at cost of appellants.