ment of a receiver of a debtor's L. R. A. 627, 24 Pac. 121; Baugh-
property is not abrogated by an man v. Superior Court, 72 Cal. 572,
appeal. Stanton v. Heard, 100 14 Pac. 207.
LAW OF RECEIVERS.
Â§ 824. Appointment of Receiver by Lower Court Pending
As lias been shown in a preceding section appellate
courts though occasionally appointing receivers pending
the appeal have done so reluctantly and have stated that
the better practice is for such appointments to be made
by the court below.^ This is undoubtedly a proper and
convenient practice where the entire jurisdiction of the
lower court has not been devested by the appeal. An
appellate court is not well equipped for the handling of
the details connected with a receivership. The question
is one which is governed by the statutory provisions of
the various jurisdictions. Receivers are appointed by
trial courts pending the determination of appeals where
a proper showing is made showing the necessity for such
an appointment.^ Where, however, the appellant has by
1 See section 822, supra.
2 Fellows V. Hiermaus, 13 Abb.
Fr. (N. S.) (N. Y.) 1.
Pending appeal a receiver was
refused, no danger appearing, Mu-
nicipal Comrs. V. Lockhart, Ir.
Rep. 3 Eq. 515.
A receiver has been appointed
pending an appeal in a suit by a
vendor to sell the property to sat-
isfy the unpaid portion of the pur-
chase price, where after a decree
in favor of the vendor, the pur-
chaser appealed but failed to pay
the taxes on the property. Darus-
mont V. Patton, 4 Lea (Tenn.) 597.
Notwithstanding an appeal the
court may appoint a receiver of
the rents and profits. Hutton v.
Lockridge, 27 W. Va. 428.
And even after appeal perfected.
Chicago & S. E. R. Co. v. St. Clair,
144 Ind. 371, 42 N. E. 225; Brink-
man V. Ritzinger, 82 Ind. 358.
To deprive the trial court of
jurisdiction to appoint a receiver
upon the ground that an appeal is
pending, if the pendency of an
appeal defeats its jurisdiction, it
must clearly appear that the case
is pending in an appellate court
that has jurisdiction thereof.
Stone V. Stone, 18 Tex. Civ. App.
80, 43 S. W. 567.
A judgment of affirmance by an
appellate court after a receiver
has been appointed for appellant,
without substituting the receiver
as appellant, is valid and binding
where the judgment affirmed was
rendered before the receiver was
appointed. Steinhauer v. Colmar,
11 Colo. App. 494, 55 Pac. 291.
The better practice in an appli-
cation for a receiver after an ap-
peal has been taken in the Su-
preme Court is to apply to the
court of original jurisdiction. Cole-
man V. Fisher, 66 Ark. 43, 48 S. W.
APPEAI.S IN RECEIVERSHIP MA.TTERS.
a proper supersedeas stayed any action by the lower
court in respect to the property in controversy, the lower
court will naturally not be in a position to appoint a
A receiver of specific real estate
can not be appointed pending an
appeal from a judgment setting
aside the probate of a will, under
N. Y. Code Civ. Proc, Â§ 713, au-
thorizing the appointment of a
receiver after final judgment to
preserve, pending an appeal, the
property which is the "subject"
of the action. Johnson v. Coch-
rane, 91 Hun 163, 36 N. Y. Supp.
Where, after judgment in favor
of a vendor for purchase money,
the vendee's wife filed a claim to
the property on pauper affidavit
and appealed from an adverse
judgment, and it appeared that
defendants were not litigating in
good faith, but only to retain pos-
session of the property as long as
possible, which was not worth the
amount of the judgment, interest,
and costs, and the plaintiff had no
other security, the court properly
appointed a receiver to take charge
of and rent the property. Young
V. Germania Sav. Bank, 133 Ga.
699, 66 S. E. 925.
Where an appeal is taken from
an order granting an interlocutory
injunction, it does not thereafter
prevent the court from appointing
a receiver in the same action, un-
der a code provision providing that
an appeal shall stay all proceed-
ings on the order appealed from,
but the court may proceed on any
other matter embraced in the ac-
tion, and not affected by such or-
der. State V. Second Judicial
District Court, 22 Mont. 241, 56
The trial court may appoint a
receiver while an appeal is being
perfected. Buck v. Stuben, 63
Neb. 273, 88 N. W. 483.
In Colwell V. Garfield Xat. Bank,
119 N. Y. 408, 409, 23 X. E. 739, the
question arose as to the power
of the court which had appointed
a receiver pendente lite to make
an order prior to appeal continu-
ing the receivership after judg-
ment had been rendered against
the party at whose instance one
had been appointed during the
pendency of an appeal from the
judgment, but the court held that
the power was not conferred by
the part of the statute which au-
thorized the appointment of a re-
ceiver "after judgment to preserve
the property during the pendency
of an appeal" since the order was
made prior and not after final
judgment. The court said: "It is
within the power of the court
after judgment, to appoint a re-
ceiver pending an appeal there-
from although the judgment de-
nies relief to the plaintiff. But
the code evidently contemplates
that this application is to be made
upon the whole case, including the
adverse judgment. It does not
permit an order to be made in an-
ticipation of the judgment, con-
tinuing the receivership after judg-
ment shall have been rendered.
The protection of the parties does
not require any departure from the
practice prescribed by section
In Moran v. Johnston, 26 Grat.
(Va.) 108, the lower court pending
LAW OF RECEIVERS.
receiver of the property pending the determination of
5. Bevieiv hy Means of Extraordinary Writs.
Â§ 825. Review by Certiorari or Mandamus.
On certiorari to review the appointment of a receiver
the only question to be considered is the jurisdiction of
the court or judge to make the appointment.^ Where the
court has appointed a receiver on an ex parte appUcation,
the appelkite court upon the case coming before it upon
a writ of certiorari will only inquire whether the lower
court had exceeded its jurisdiction in making the appoint-
ment. A mere irregularity, however gross it may be, can
not be inquired into.- A writ of supervisory control of a
receivership matter will not, however, be granted where
a remedy by appeal lies for the same purpose, and giving
an equivalent relief.^ In mandamus proceedings to va-
an appeal appointed a receiver to
take charge of the lands in con-
troversy, rent it and collect the
See, also: Adkins v. Edwards,
83 Va. 316, 2 S. E. 439; Beard v.
Arbuckle, 19 VV^ Va. 145; Brink-
man v. Ritzinger, 82 Ind. 358.
3 McAneny v. Superior Court,
150 Cal. 6, 87 Pac. 1020; Gardner
V. Continental Ins. Co., 31 Ky.
Law Rep. 69, 101 S. W. 911.
In Goddard v. Ordway, 94 U. S.
672, 24 L. Ed. 237, it was held
proper for the court below, not-
withstanding a supersedeas, to
give the receiver the requisite or-
ders for the preservation of the
receivership fund but that the
court could not place it beyond
any decree which might be made
by the appellate court.
After decree and an appeal
from such decree a receiver may
be appointed but only where the
supersedeas or appeal bond does
not cover the rents and profits.
Adkin v. Edwards, 83 Va. 316, 2
S. E. 439; Beard v. Arbuckle, 19
W. Va. 145; Moran v. Johnston, 26
Graft. (Va.) 108; James River &
K. Co. V. Littlejohn, 18 Graft. (Va.)
1 Gibbs V. Morgan, 9 Ida. 100, 72
â€¢^ Maynard v. Railey, 2 Nev. 313.
See, also, Blaise v. Security
Brewing Co., 124 La. 979, 50 So.
3 State v. District Court, 54
Mont. 472, 171 Pac. 784; Lam-
berton v. McCarthy, 30 Ida. 707,
168 Pac. 11.
Mandamus will not lie where
remedy by appeal lies in the re-
ceivership matter. Wooster v.
Calhoun Circuit Judge, 150 Mich.
459, 114 N. W. 232.
APPEALS IN RECEIVERSHIP MATTERS. 2187
cate a receivership as to certain property, the court will
not review the question whether the receiver was improvi-
Â§ 826. Review by Writ of Prohibition.
The office of a writ of prohibition issued from a supe-
rior court is to prevent an inferior court from exercising
authority where it has no jurisdiction or is about to pro-
ceed beyond its jurisdiction. Where a receiver after the
perfecting of an appeal and supersedeas has taken no
further steps in actions commenced by him, the writ will
not be issued to prohibit him from acting further in such
The writ of prohibition is sometimes issued to prevent
conflicts between courts in respect to interference by one
court with a receiver appointed by another court.- A
writ of prohibition is a proper remedy for an attempted
exercise of power by a receiver who has been appointed
by a court without authority.^ But a writ of prohibition
4 Lauraine v. Ashe (Tex.), 191 v. Reynolds. 209 Mo. 161. 123 Am.
S. W. 563. St. Rep. 468, 14 Ann. Cas. 198, 15
1 State ex rel. v. Garesche (Mo.), L. R. A. (N. S.) 963, 107 S. W. 487.
210 S. W. 900. -' State ex rel. Sullivan v. Rey-
The writ of prohibition arrests nolds, 209 Mo. 161, 123 Am. St.
the proceedings of a court when Rep. 468. 14 Ann. Cas. 198, 15
they are without or in excess of L. R. A. (N. S.) 963, 107 S. W.
the court's jurisdiction but does 487; Maclean v. Wayne Circuit
not arrest the exercise of an ac- Judge, 52 Mich. 257, 258, 18 N. W.
knowledged jurisdiction. This rule 396.
is, of course, applicable to re- '^ Fischer v. Superior Court, 110
ceivership cases. State v. Supe- Cal. 129, 42 Pac. 561; Havemeyer
rior Court, 86 Wash. 492, 150 Pac. v. Superior Court, 84 Cal. 327, 18
1168. Am. St. Rep. 192, 10 L. R. A. 627,
The legitimate scope and pur- 24 Pac. 121; Jacobs v. Superior
pose of the writ of prohibition is Court, 133 Cal. 364, 85 Am. St.
to keep inferior courts within the Rep. 204, 65 Pac. 826; Murray v.
limits of their own jurisdiction Sui)erior Court, 129 Cal. 628, 62
and prevent them from encroach- Pac. 191: St. Louis, etc., R. Co. v.
ing upon the jurisdiction of other Wear. 135 Mo. 230. 33 L. R. A. 341,
tribunals. State ex rel. Sullivan 36 S. W. 357, 658; Woodward v.
LAW OP RECEIVERS.
lies only to the court, and not to the receiver except as be
is indirectly affected by its operation.^ Tbe writ of pro-
hibition will not, however, be granted where the petitioner
has under the statute an adequate remedy for the matter
complained of by way of an appeal ^ or where the party
aggrieved has a plain, speedy and adequate remedy at
law.'' But where irreparable injury will result from an un-
authorized appointment of a receiver and the injury
therefrom is continuous in character and there is no
plain, speedy and adequate remedy at law, a writ of pro-
hibition may be had as a writ of right to compel the
vacation of the receivership proceedings.'^
Superior Court, 95 Cal. 272, 30 Pac.
Where the jurisdiction of the
lower court has been devested by
an appeal, a writ of prohibition
will lie to prevent the making of
an inventory of the property by
the receiver and a surrender of
property to the receiver. State ex
rel Guion v. People's Fire Ins. Co.,
125 La. 983, 52 So. 120. But in
this connection see Blaise v. Se-
curity Brewing Co., 124 La. 979,
50 So. 816.
On a writ of prohibition against
a judge to restrain him from ad-
ministering the estate of a corpo-
ration through a receiver, on the
ground that the court had no jur-
isdiction to appoint a receiver the
fact that the cause of action al-
leged in the petition for the ap-
pointment of a receiver was de-
fectively pleaded will not be con-
sidered. State V. Goodrich, 138
Mo. App. 283, 120 S. W. 646.
4 Dunbar v. Bourland, 88 Ark.
153, 114 S. W. 467; Havemeyer v.
Superior Court, 84 Cal. 327, 18
Am. St. Rep. 192, 10 L. R. A. 627,
24 Pac. 121.
5 Western Underwriting & Mort-
gage Co. v. Superior Court, 22 Cal.
App. 413, 134 Pac. 732.
6 Jacobs V. Superior Court, 133
Cal. 364, 85 Am. St. Rep. 204, 65
Pac. 826; State v. Superior Court,
15 Wash. 668, 55 Am. St. Rep. 907,
47 Pac. 31.
T First Nat. Bank v. Superior
Court, 12 Cal. App. 335, 107 Pac.
Â§ 827. Regarding Forms Appended.
In accordance with the general custom followed by text-
writers, we shall append a collection of forms used in
receivership matters. All of the forms here appended
are such as are taken from the reports of opinions of the
courts and to that extent may be said to be adjudicated
forms, although in many instances the validity of the
instant form was not specifically raised in the case. It is,
of course, needless to say that all legal forms are useful
merely as guides or suggestions, and must be adapted to
the facts and circumstances of each particular case or
class of cases, and must be adapted to conform to the
rules of practice of each particular jurisdiction,
Â§ 828. Complaint in Federal Court for Receiver of Insolvent
[Omitting formal parts.]
To the Judge of said court, in Chancery Sitting : Your orator
states that it is a corporation created and doing business under
the laws of the state of Tennessee, while the defendant is a corpo-
1 Darragh v. H. Wetter Mfg. Co., claim of the complainant had
78 Fed. 7, 8, 23 C. C. A. 609. The been reduced to judgment and that
court said of the bill in this case: an execution upon it had been
"It is a model of clearness and returned nulla bona, was not sus-
brevity, worthy of imitation. It tained.
states without a useless word the For complaint praying for re-
facts conferring jurisdiction upon ceiver of a corporation, see State
the federal court and the existence v. Scarritt, 128 Mo. 331, 332, 30
of every condition required by the S. W. 1026.
statute of Arkansas to entitle the For complaint seeking receiver
complainant to the relief prayed." of an irrigation company, see Mc-
An objection that the bill could Henry v. Bankers' Trust Co. (Tex.
not be sustained in a federal court Civ.), 206 S. W. 560.
because it did not allege that the For complaint seeking dissolu-
( 2189 J
2190 LAW OF RECEIVERS.
ration created and doing business under the laws of the state of
Arkansas, and an inhabitant of this district. Said defendant is
indebted to your orator, for goods sold and delivered, in the sum
of tiventy-eight Jinndrcd forty-two and 90-100 dollars, and is
insolvent, but that the distributive share going to your orator
upon a distribution of its assets will exceed the sum of tivo
thousand dollars. Your orator therefore prays for process of
subpcBua against the defendant; that it be required to answer
this bill; that a receiver be appointed to take possession of its
assets, and to administer the same ; that they be reduced to money
and distributed among the creditors entitled there lo; and for all
other proper relief.
Â§ 829. Creditors' Bill Seeking Appointment of Receiver.*
[Omitting formal parts.]
1. That on the 17th day of November, \^91, judgments were
rendered before B. A. ^Yatson, a justice of the Peace in and for
the State and county aforesaid, against the defendant D. Pender,
trading as D. Pender & Co., for goods, wares and merchandise
sold and delivered, and in favor of the plaintiffs, as follows:
In favor of the plaintiffs McCadden & McElivee for the sum of
U2.90, and ^1.15 costs; /. W. Old & Co. for p7.05, and %1.15
costs; M. L. Strauss & Sons for $50.70, and $1.15 costs; Foster,
Knight & Co., two judgments, one for $138.65 and for $83, and
$1.15 costs in each case; that each of said judgments were there-
after duly docketed in the Superior Court of said county, and
executions issued thereon to the Sheriff of said county, by whom
the same were returned wholly unsatisfied.
2. That the plaintiffs E. Austen Jenkins and Robert H. Jen-
kins, partners, trading as Edward Jenkins & Son, sold and de-
, livered to the defendant D. Pender, trading as D. Pender & Co.,
goods, wares and merchandise, during the fall of 1S91, of the
value of $119.36, for which he promised to pay,
3. That on the 21st day of September, 1891, the defendant
D. Pender, trading as D. Pender & Co., made conditional sale
tion of corporation and receiver, ceiver showing necessity to oper-
see Merchants" & Insurers' Report- ate a mining property, see Hamil-
ing Co. V. Jones, 220 Fed. 791. ton Trust Co. v. Cornucopia Mines
For allegations in bill for re- Co., 223 Fed. 494, 139 C. C. A. 42.
of his stock of goods, wares and merchandise at Old Sparta, X. C,
and in the purchase of which the above debts were contracted,
to one W. B. Ricks in consideration of $2,300 due the said Ricks
by the firm of Pender & Gotten, to go as a cash payment on said
purchase, and three notes for $500 each, and 07ie note for $200
to be accepted for the balance of said purchase-price, the title to
the said stock of goods to be retained to the said D. Pender & Co.
until said notes were fully paid.
4. That thereafter the said three notes for $500 each were
assigned to the defendants Ida L. Bryan, Zilphia Killehrew and
Henry Pender, and the note for $200 to Henry Pender, in each
instance as collateral security for debts claimed to be due said
parties by the firm of Pender & Gotten. That the sum of $250
has been paid by the said Ricks upon the note held by the said
Ida L. Bryan, but the balance due upon the note aforesaid, and
the whole of the other of said notes, as plaintiffs are informed,
5. That, as plaintiffs are informed and believe, and so allege,
the defendant D. Pender, trading as D. Pender & Go., during
the year 1^91, removed several thousand dollars worth of his
stock of goods from his store at Old Sparta to the town of
Tarhoro and into the store then occupied by Pender, Hargrove &
Cotten, and during the year sold the same and applied the pro-
ceeds of said sales to the payments of debts due by Pender &
6. That A. J. Gotten, who with the defendant B. Pender com-
posed the firm of Pender & Gotten, died in July, 1890, and the
defendant M. E. Gotten was duly qualified as the administratrix
of his estate; that the defendant D. Pender has since then con-
tinued as surviving partner of said firm in the management and
closing up of its affairs.
7. That on the day of Noveniher, 1891, the defendant
D. Pender, as surviving partner qi Pender & Gotten, and as a
member of the firm of Pender, Hargrove & Gotten, executed an
assignment to the defendants J. L. Bridgers and Fred Philips,
conveying his interest in both firms to secure certain debts therein
mentioned, among them being the debts due Henry Pender,
Zilphia Killehrew and Ida L. Bryan, as aforesaid. That said
trustees have taken possession of the property so conveyed and
LAW OF RECEIVERS.
have paid off certain of the del)ts mentioned in said trusts, bnt
whether they have paid off the particular debts referred to
above, or whether the trust property will be sufficient for that
purpose, the plaintiff's are unable to say, but ask that the said
trustees be required to answer fully in respect thereto.
8. That the said W. B. Ricks is rapidly disposing of the stock
of goods sold him as aforesaid ; he has failed to pay off the notes
due by him as aforesaid, although the same are due and payment
thereof has been demanded. That he is insolvent, and the said
stock of goods, as plaintiffs are informed and believe, is now
worth less than the balance due on them as aforesaid.
9. That D. Pender is wholly insolvent, but the firm of Pender
& Gotten is abundantly solvent and able to pay its indebtedness.
[Wherefore, the plaintiff's, E. Austen Jenkins and Robert H.
Jenkins, partners as aforesaid, pray judgment for the sum of
$119.36 and interest against D. Pender, trading as D. Pender &
Co.; and all the plaintiffs pray judgment.]^
1 McCadden v. Pender, 115 N. C.
64, 20 S. E. 208.
For form of affidavit of same na-
ture, see Gerson v. De Turck, 82
111. App. 125.
In connection witli creditors'
bills, see: Howard v. Stephenson,
33 W. Va. 116, 10 S. E. 66; Mathu-
shek Piano Mfg. Co. v. Pearce, 78
Hun 610, 28 N. Y. Supp. 1113;
Albert v. Clarendon Land Inv.,
etc., Co., 53 N. J. Eq. 623, 23 Atl.
8; Popper v. Supreme Council, etc.,
61 App. Div. 405, 70 N. Y. Supp.
"The plaintiff complains of the
defendant and says, that plaintiff
and defendant are partners doing
business as bankers, at Indianap-
olis, Indiana, under the firm name
of 'A. & J. C. S. Harrison,' and
have been, as such partners, doing
such business for twenty years
last past; that 'a run' has been
going on, by their depositors,
against their said bank for several
days last past, whereby their cash
resources have been so much re-
duced that they are unable longer
to continue said banking business,
and said firm is therefore insol-
vent; that, in order to prevent a
multiplicity of suits and thereby
cause great expense in litigation,
and in order to save said estate for
their creditors, it is important
that a receiver be now appointed
for said firm to take possession
and control of the assets of such
firm, and administer the same un-
der the order of the court; that a
dissolution of such partnership be
had, and an accounting between
the partners. Wherefore," etc.
A receiver was appointed as
In Pressley v. Lamb, 105 Ind.
171, 4 N. E. 682, which involved a
partnership dissolution, is set out
the following complaint:
In Katz V. Brewington, 71 Md.
79, 20 Atl. 139, the bill of com-
1. That W. E. Rides be restrained from paying to Ida L.
Bryan, Zilpliia Killebreic and Hoiry Fender the amounts due
upon the above described notes.
2. That a receiver be appointed of said notes and stock of
goods sold to Ricks, to take charge of the goods, sell the same and
hold the proceeds until the further order of this Court.
3. That as to the sum of $300 paid to Ricks, and the sum of
$250 paid to Ida L. Bryan, as above set forth, and as to the
amount of the goods of D. Pender & Co., appropriated to the
payment of the debts of Pender & Gotten, and as to the amount
of the several notes due by Ricks, in the event they are paid to
the parties now holding them, these plaintiffs pray to be sub-
rogated to the rights of said creditors of Pender d' Cotten against
the said firm, that they receive from Bridgers and Philips, trus-
tees, whatever may be coming to them under said trust, and that
they have judgment against M. E. Cotten, administratrix, for
4. That this cause be referred to some competent person to
state such accounts as may be necessary.
5. For general relief and costs.
plaint charged in substance that the possession of defendant, and
complainant and defendant, in desired that the partnership should
May, 1887, entered into a copart- be wound up under the order and
nership under the name of L. direction of the court; that defen-
Katz & Company, and that the ^^"^ absolutely excluded com-
, . 1, J u -J plainant from all control of the
business had been carried on un-
business, and refused to give him
der the firm name until the time . â€ž ^. .
any information in regard to the
of the filing of the bill; that the uâ€žâ€ž;â€žâ€ž^â€ž ^Â« ti,^ Â« u
business of the firm, having car-
books of the firm were in the pos- j-ied the books of the firm away
session and control of the defen- from the place of business of said
dant, who refused to permit com- firm, and refused to disclose the
plainant to have access to the place where said books were de-
same; that defendant had sole posited. An order appointing a
control and possession of the receiver was affirmed,
goods of the firm, and was dispos- For form of complaint in part-
ing of the same in fraud of the nership accounting praying for re-
complainant; that complainant no ceiver, see, also, Allen v. Cooley,
longer felt safe with the books and 60 S. C. 353, 38 S. E. 622; Heath-
papers ana usseLs oi oaiu >.^.^ .^ cot v. Ravenscroft, 6 N. J. Eq. 113.
II Recâ€” 138
2194 LAW OF RECEIVERS.
Â§ 830. Stipulation of Parties for Appointment of Receiver.^
[Omitting formal parts.]
It is here])y stipulated and agreed by the attorneys and agents
for the parties, plaintiffs and defendants in the above entitled
cause, and by the mortgagor, that the Hon. John M. Wilson,
Judge of the Cook County Court of Common Pleas, shall ap-
point E. B. Hooper receiver, for the purpose of taking posses-