Nicoll v. . Boyd

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] We think this appeal should be dismissed. The death of the judgment debtors occurred after the appointment of the receiver. They had gone so far as to execute the usual assignment of their property to him. It, therefore, was, upon the death of the first receiver, vested in the court, for his possession was its possession, and he was merely its agent or representative. The suits in question were begun by the new receiver under the authority of the court, for the purpose of getting in the state of the judgment debtors, and although upon their death the creditor's suit abated, the functions of the receiver continued, and upon his death devolved upon the court. It was competent, therefore, to appoint the plaintiff to carry the suits on to their completion, and in other respects fulfill the duties which the first receiver left incomplete.

Nor was it necessary that the defendants in those suits should have notice of proceedings for the appointment of the successor to the first receiver, for as the vice-chancellor inAttorney-General v. Day (2 Maddock's Ch. 246) declared: "There is no color for saying that strangers can, in such case, come in before the master — it would lead to indefinite importunity." It is not for the defendants, therefore, in this action to complain that the appointment was not according to the regular course of the court, and whether the irregularity of proceeding, in disregard of the death of the judgment debtors, should be overlooked, was, under the circumstances of this case, entirely within the discretion of the Supreme Court, and its exercise is not the subject of review here. (In re Robinson,37 N.Y. 261.) In case the actions are successful and a question arises as to the application of their fruits, it may be necessary to revive the suit against the representatives of the judgment debtors, but no proceeding in that suit is at present necessary, and the cases of Washington Ins. Co. v. Slee (2 Paige, 365), and Requa v. Holmes (16 N.Y. 193), cited by the appellant, have no application. The representatives of the judgment debtor have no interest in these actions adverse to the receiver, for as we have seen, his title accrued prior to the death of the debtors, and by conveyance from them.

It is also objected that at the time of the appointment of the last receiver, twenty years had run against the judgment which the creditor sought to enforce. If there is any thing in this, if the objection is not one altogether personal to the debtor, it presents a question which the court below could not be required to answer on motion, and which, however disposed of by that court, is beyond the reach of an appellate tribunal.

It follows that the appeal should be dismissed.

All concur, except TRACY, J., absent.

Appeal dismissed.