Clark v. Rugg

The Chiee-Justice delivered the opinion of the court.'

Eugg filed his bill in Leon county, Second Circuit, to dissolve a partnership between himself and Clark in a certain steamboat, and the sale thereof and distribution of the proceeds, and for general relief. The bill was filed March 17th, 1884. On the same day the Spring Term of the Circuit Court commenced, Judge Vann, of the Third Circuit, presiding in place of Judge Walker, of the Second Circuit, under the order of the Chief-Justice assigning Judge Vann “to hold the term.” Const., Art. 6, §7. The term of court was held by Judge Vann until the second day of April, when it was adjourned sine die. During the term the bill in this cause, together with certain affidavits in regard to the condition of the steamboat, were presented to Judge Walker, at chambers, who made an order “ that A. Moseley, as receiver of this court, do immediately take possession of the boat in controversy and hold the same until the further order of this court, and that neither plaintiff or defendant intermeddle with said boat in any way until the further order of this court.”

This order was entered in the Chancery Order Book on March 26. Clark appealed from the order.

The grounds of appeal are, that at the time of. making the order Judge Walker was without power as a Judge in Leon county to make such order, Judge Yann being the Judge of said'court and alone had jurisdiction in the same cause. (2.) That the order was made without notice and without any prayer in the bill for the appointment of a receiver, and without any proper allegations showing the necessity of sueh appointment. (3.) That the receiver was placed in possession of the steamboat without requiring a bond either from complainant or the receiver.

The decision of a case in North Carolina in respect to the status and jurisdiction of the Judges where one Judge is assigned to hold a term in the place of another, seems to meet the first question in this case. It was there decided by the court that when the Governor requires a Judge to hold a term of a court, regular or special, for some county outside of his own district, the authority of the Judge is special; the jurisdiction of the proper Judge of the District is superseded by the substituted Judge in that county during the specified term in respect to all cases pending in the specified county. Bear etal. vs. Cohen, 65 N. C., 511, 513.

This-concise statement of the law is so appropriate to the circumstances and the constitutional provision of our State we adopt it as expressing the views of this court. Judge Yann having been designated agreeably to the terms of the Constitution to hold the specified term in Leon county, became, pro hcie vice, the Judge of the Circuit Court for Leon county during the continuance of the term, as to all causes pending in that county in the Circuit Court; and the authority of the resident Judge, as to such causes, was in the meantime superseded. As to all matters pending in other counties, and as to any special duties in matters not pending in the Circuit for Leon county, the authority of Judge Walker was not affected.

It follows that the order appealed from cannot be sustained.

There was no prayer for a receiver, or an injunction contained in the bill. If the application for a receiver is made before decree, it will not be granted unléss the bill contains a specific prayer- that a receiver be appointed. 2 Daniel’s Chy., 5th Ed., 1734; Pasco vs. Gamble and Poole, 15 Fla., 562, 571. The complainant must amend his bill to make this equitable remedy available. Ibid. And see Rules 25, 26, 41, Circuit Court Rules in Equity.

Respondent cites the language of Chancellor Walworth in Martin vs. VanSchaick, 4 Paige, 479, and Innes vs. Lansing, 7 Ib., 583; also Allen vs. Hawley, 6 Fla., 142, 163, to the effect that in suits to dissolve a partnership the appointment of a receiver is a matter of course, if the parties cannot agree among themselves as to the disposition of the property. In each of those cases the bill specially prayed for the appointment of a receiver.

Chancery rules 25 and 26 have been in force since 1842 in Florida, (see 1 Fla. Rep.,) and specific prayers for special orders have always been required. That there may be exigencies in the progress of litigation in which the court may appoint a receiver when there is no prayer therefor in the bill may be true, as is held in Tennessee, especially as between the defendants, but that is an exception to the rule, which the court allows ex necessitate. Our practice is governed by our own rules of forty years standing.

The security to be exacted on the appointment of a receiver depends on the character of the property.

The order appealed from is reversed.