Imágenes de páginas
PDF
EPUB
[ocr errors][ocr errors][merged small]

44

ly obtained holds the same as trustee for the parties truly inter-
ested.39 To surcharge, correct and set aside, a settlement of the
accounts of administrators, which has been confirmed by a decree
of the proper State court; 40 to set aside a fraudulent transfer of
property, made by an administratrix with the sanction of the
State probate court; 41 to set aside a fraudulent sale of land,
made by the decedent in his lifetime, although the State probate
court has authority to grant a license, at least where the com-
plainant does not seek to sell the same, and thus authorize the ad-
ministrator to bring a suit for the same purpose, when no such
license was granted previous to the filing of the bill; 42 to set aside
a release obtained by an administrator or guardian by fraud; 43
to set aside an election obtained from a widow through fraud;
it has been suggested, to set aside a judgment of the State court.
of probate obtained by fraud; 45 at the suit of a creditor to en-
join an administrator from paying over the money, or distribut-
ing the property of the estate, to others joined with him as par-
ties defendant, although the Federal court cannot ascertain the
amount of unpaid claims nor whether the estate is in a condi-
tion for final distribution; 46 to enjoin an ancillary administrator
from transmitting the assets to the court of original administra-
tion until a claim of a creditor has been determined; 47 after
the determination by the State court is complete, to subject to
the payment of a debt of the decedent, property in the hands
of a distributee; a bill to enforce an attachment on the estate
of the decedent, levied by the Federal court before his death,
when the State statute authorizes attachments and executions to
be levied upon equitable interests in real estate; 49 to sell land
for the benefit of a creditor of the estate, when the administratrix

48

39 Diamond v. Connolly, C. C. A.,
251 Fed. 234.

40 Bertha Zine & Mineral Co. v.
Vaughn, 88 Fed. 566; Diamond v.
Connolly, C. C. A., 251 Fed. 234.
Contra, Northrup v. Browne, C. C.
A., 204 Fed. 224.

41 Central Nat. Bank v. Fitzger-
ald, 94 Fed. 16.

42 Hale v. Tyler, 115 Fed. 833.
43 Pulver v. Leonard, 176 Fed.
586.

44 Eddy v. Eddy, C. C. A., 168 Fed. 590.

45 Sutton v. English, 246 U. S. 199, 207; Broderick's Will, 21 Wallace, 503, 519, 22 L. ed. 599, 605. But see Smith v. Jennings, C. C. A., 238 Fed. 48.

46 Davis v. Davis, 89 Fed. 532.
47 Ingersoll v. Coram, 132 Fed.
168, 172; aff'd 211 U. S. 335.

48 Hale v. Coffin, 114 Fed. 567.
49 Lant v. Manley, C. C. A., 75

refuses to institute a proceeding for that purpose in the proper State court under statutory authority, although the administration is still pending in the State court undetermined; 50 to compel specific performance, by the heirs and administrators, of a contract by the decedent in relation to property of the decedent, which is in the process of administration in the State court; 51 to compel an executor to pay an assessment levied after the decedent's death upon national bank stock, which he holds; 52 to appoint a receiver of the decedent's assets within the district, where the executors disagree and can not act together; 53 and when no temporary administrator has been appointed, pending a conflict in the court of probate concerning the right to administration.54 The occupation of land therein included by the widow after her quarantine has expired under a claim of title by devise does not take away such jurisdiction.55 At the suit of a minority stockholder, to enjoin one of two executors from voting upon a majority of the stock in the corporation pending litigation in the State court, which has enjoined the other executor from voting thereupon.56

The property of a debtor taken into the custody of a Federal Court by seizure under process issued under its judgment remains under its control to be applied in satisfaction thereof, notwithstanding the death or insolvency of the judgment debtor and the institution of proceedings in a State court to administer his estate, and irrespective of subsequent State legislation.57

Fed. 627. See Lant v. Kinne, C. C.
A., 75 Fed, 636.

50 Brun v. Mann, C. C. A., 12
L.R.A. (N.S.) 154, 151 Fed. 145.
51 Davis v. Davis, 89 Fed. 532.
52 In re Connaway, 178 U. S. 421,
44 L. ed. 1134; Wickham v. Hull,
60 Fed. 326; Brown v. Ellis, 86 Fed.
3.57.

53 Ball v. Topkins, 41 Fed. 486. See infra, § 302.

54 Underground El. Rys. Co. of Iondon v. Owsley, 169 Fed. 671; S. c., C. C. A., 176 Fed. 26.

55 Underground El. Rys. Co. of London v. Owsley, 169 Fed. 671; s. c., C. C. A., 176 Fed. 26.

56 Villamil v. Hirsch, 138 Fed. 690. As a condition of granting the injunction, the court enjoined the holding of a stockholders' meeting until the dispute between the executors had been decided by the State court. Villamil v. Hirsch, 143 Fed. 654.

57 Rio Grande R. Co. v. Gomila, 132 U. S. 478, 481, 33 L. ed. 400, 401; Leadville Coal Co. V. MeCreery, 141 U. S. 475, 35 L. ed. 824; Straine v. Bradford Sav. B. & T. Co., 88 Fed. 571; Johnston v. Johnston, 225 Fed. 413.

§ 55. Property in the custody of receivers. The appointment of a receiver by a court, or the filing therein, of a bill praying for the appointment of a receiver 2 or perhaps the presentment to the court, of a bill praying a receiver and the issue of a restraining order or other order thereupon,3 prevents the appointment of a receiver of the same property by a court of coördinate jurisdiction; except perhaps when the first suit is brought by creditors, secured or unsecured, or stockholders, and the second is instituted for the dissolution of the corporation, which is not prayed in the first suit.

In such a case, it has been held that the prior appointment of a receiver by the Federal court will not prevent the appointment of one for the same property by the State court, in an action to dissolve the corporation; but that such receiver should apply to the Federal court for the return of the property to him.*

Upon such an application the Federal Court cannot review the findings of the State Court which are based on evidence, but is

§ 55. 1 Shields v. Coleman, 157 U. S. 168, 39 L. ed. 660; Texas v. Palmer, C. C. A., 22 L.R.A. (N.S.) 316, 158 Fed. 705, aff'd Palmer v. Texas, 212 U. S. 118; Garner v. Southern Mut. Building & Loan Ass'n, C. C. A., 84 Fed. 3, 28 C. C. A. 381; Lancaster v. Asheville St. Ry. Co., 90 Fed. 129; Sullivan v. Algrem, C. C. A., 160 Fed. 366; Stirling v. Seattle, R. & S. Ry. Co., 198 Fed. 913; Re Lasserot C. C. A., 240 Fed. 325.

2 Farmers' Loan & Tr. Co. v. Lake Street El. R. Co., 177 U. S. 51, 44 L. ed. 667; Appleton Water Works Co. v. Central Trust Co., C. C. A., 93 Fed. 286; Holland Trust Co. v. International Bridge & Tramway Co., C. C. A., 85 Fed. 865. See Palestine Water & Power Co. V. Palestine, 91 Tex. 540, 44 S. W. 814, 40 L. R. A. 203; affirming 41 S. W. 659. Contra, De La Vergne Refrigerating Mach. Co. v. Palmetto Brewing Co., 72 Fed. 579; where the Federal court appointed a receiver in a

foreclosure suit, after a rule to show cause in a State court why a receiver should not be appointed upon a stockholders' bill, and refused to deliver the property to the receiver subsequently appointed by the State court.

3 St. Louis & S. F. R. Co. v. Hadley, 155 Fed. 220; O'Neil v. Welch, C. C. A., 245 Fed. 261, reversing Welch v. Union Casualty Ins. Co., 238 Fed. 968.

4 State v. Port Royal & Augusta R. Co., 45 S. C. 470, 23 S. S. 363, 386; Louisville, New Albany & Chicago R. R. Co. v. Cauble, 46 Ind. 277, 280; People v. New York City Ry Co., 57 Misc. (N. Y.) 114; People v. Hasbrouck, 57 Misc. (N. Y.) 130; St. Louis Car Co. v. Stillwater R. Co., 53 Minn. 129. See City Water Co. v. Texas, 88 Tex. 600, 604; Alderson Receivers, $20. See Kansas City Pipe Line Co. v. Fidelity Title & Tr. Co., C. C. A., 217 Fed. 187.

limited to a consideration of the question of priority of jurisdiction. Such an application by temporary receivers appointed in a dissolution suit, was denied, without prejudice to its renewal in case their appointment should be made permanent.

The fact that the first receivership was based upon the fraud. of officers and directors and the second application upon the ground of insolvency, does not affect the rule. But it has been held that this doctrine does not apply when the actions are based upon different subject matters and different issues are therein raised, and the court in which suit first was brought has appointed no receiver before the second court has appointed a receiver who has taken possession. It has been said that the doctrine does not apply where the record shows that the first appointment was beyond the jurisdiction of the court, but that it does apply even if the first appointment was attained by fraud.9

It has been held that a receiver appointed by a Federal court of equity will not be ordered to take possession of property, upon which a State court has levied an attachment, 10 or other process,11 before his appointment was prayed. Where a State court had attached a debt, before the court of another State had appointed the receiver of the creditor, the Federal court directed that judg ment be entered against the receiver in an action by him to collect the debt, unless he should consent to a stay of proceedings until the State court had acted upon the matter.12

5 McKinney v. Landon, C. C. A., 209 Fed. 300. See Pac. Const. Pipe Co. v. Conrad City Water Co., 237 Ied. 673.

6 Pennsylvania Steel Co. v. New York City Ry. Co. (Lacombe, J., S. D. N. Y.), N. Y. L. J., February 4, 1908. But see Robinson v. Mutual Reserve Life Ins. Co., 162 Fed. 794. 7 Stirling v. Seattle, R. & S. Ry. 'o., 198 Fed. 913.

8 Empire Trust Co. v. Brooks, C. 7. A., 232 Fed. 41.

9 Pac. Const. Pipe Co. v. Conrad City Water Co. 237 Fed. 673.

10 Southern B. & T. Co. v. Folsom, C. C. A., 75 Fed. 929; Hale v. Bugg, 82 Fed. 33; Dodds v. Palmer Moun

[blocks in formation]

It has been held that the entire property of a corporation is not in the custody of a court that has appointed a receiver over the assets of another corporation, which owns a majority of its stock and operates its railroad under a lease; and that consequently, a State court may appoint a receiver of the lessor, after the appointment by a Federal court of a receiver of the lessee and stockholder; 13 but this rule will not apply if the Federal court has extended the receivership to the interest of the lessor in the property. 14

A stipulation staying proceedings in the Federal court, after a motion for a receiver has been made, does not justify the subsequent appointment of a receiver by a State court.15 Where, after the appointment of a receiver, the Federal court accepted a bond in lieu of the property and discharged the receiver, it was held that the State court might appoint a receiver; and that the Federal court could not subsequently appoint another receiver of its own to take the property from the possession of the State receiver; 16 but an appeal to a State court of review from the order appointing a receiver, and the filing of a supersedeas bond, which stays the proceedings, before the receiver has taken possession, does not authorize the appointment of a receiver by the Federal court; and such Federal receiver must surrender the property to the State receiver after the State order of appointment has been affirmed; although such appointment was in aid of a decree, an appeal from which, accompanied by a supersedeas, is still pending in the State court of review.17 It has been held: that the appointment by the Federal court of a receiver of the assets of a lessor does not oust the State court of jurisdiction to enjoin the directors from amending the lease; 18 and that after the Federal court has acquired jurisdiction of a bill praying the

13 Central R. & B. Co., v. Farmers' L. & Tr. Co., 56 Fed. 357.

14 Re Metropolitan Railway Receivership, 208 U. S. 90, 52 L. ed. 403.

15 McKechney v. Weir, C. C. A., 118 Fed. 805.

16 Shields v. Coleman, 157 U. S. 168, 39 L. ed. 660. But see Interstate Ry Co. v. Philadelphia, B. & T. St. Ry. Co., 164 Fed. 770.

17 Texas v. Palmer, C. C. A., 22 L.R.A. (N.S.) 316, 158 Fed. 705; aff'd. Palmer v. Texas, 212 U. S. 118, 53 L ed. 435; Sullivan v. Algrem C. C. A., 160 Fed. 366; Stirling v. Seattle, R. & S. Ry Co., 198 Fed. 913.

18 Guaranty Trust Co. v. Northern Chicago St. Ry. Co., C. C. A., 130 Fed. 801.

« AnteriorContinuar »