The record-union., 1891-03-29

SCiSCs hoio anu pTtStINc, CQ6
pendency of an appeal from said judg-
ment, the rents of said lot of land. That
prior to january l, 1890, said receiver, as
such, received the sum of $3.50 as rents of
the property. That on the Sth day of No
vember, 1889, said Superior Court granted
new trial in said cause, and upon the
l1th day of December, 1889, rendered
judgment in said action in favor of Mary
j. Lynch, declaring her to be the owner
of said lot of land and the money in the
hands of the receiver. That on the 2Sth
day of February, 1890, said Mary j. Lynch
assigned to this plaintiff (Philbrook) all
moneys belonging to her in the hands of
said receiver. That on the 7th day of
March, 1890, the court settled the re-
ceiver's accounts, and allowed him as
credits as such officer all of said $3.50, ex-
cept the sum of S274 so, and directed him
to pay said sum to Mary J. Lynch. That
on the 10th day of March. 1890, plaintiff
notified the receiver of the assignment
and demanded the payment to him of the
S2l4 5O but he has refused to pay the same.
Plaintiff prays for Judgment etc.
Defendant answered this complaint
with a general denial and at the opening
of the trial objected to the Justices Court
trying the action, upon the ground that
1t was an action in equity and therefore
the court had no jurisdiction. The OBJ
Jections were overruled and upon trial
the plaintiff obtained judgment as prayed
for.
"The defendant appealed the case to the
superior court, filed an amended answer.
and at the commencement of the trial OBJ
Jected to the jurisdiction of the Superior
Court to try the case, upon the ground
that it's jurisdiction in equity was original
and 1T had no appellate jurisdiction in
such case. The objections were overruled
and the trial resulted in another judg-
ment for the plaintiff as prayed for in the
complaint. That on the trial of said case
both tho Justices Court and the Superior
Court exceeded their jurisdiction, for the
reasons above stated, and petitioner has
no remedy, except by this application
1t appears that the petitioner occupies
the somewhat novel position of having
| appealed his case to the Superior Court
upon questions of law and fact, then OBJ
jecting to said court trying the case upon
the ground of want of jurisdiction, and
upon that objection being overruled.
| taking the chance ofan adverse verdict and
having lost that chance, then proceeding,
by review, to this court to test the juris-
diction of the Superior Court.
1t seems the much better practice for
| petitioner would have been to directly
attack the jurisdiction of the Justices
Court in some appropriate manner rather
than appeal the case to the Superior
Court upon its merits. Indeed, if petit
| toner's contention is true, that the Su-
perior Court had no jurisdiction to try
| the case upon appeal. because the Justices
Court had no jurisdiction to try the case
at all, then it is difficult to see how the
petitioner could secure a standing in the
! Superior Court upon appeal, for any pur-
| pose, for, after case has been tried in
the Justices Court upon its merits and an
appeal is taken to the appellate court
upon the law and the facts. or upon the
| law (when new trial is granted) the
| cause is heard dc noU0 in the Superior
| Court.
| Owing to the views we entertain upon
the other branch of the case, it is not nee
essary to consider the question as to
whether the conduct of the petitioner in
appealing this cause to the Superior Court
upon the law and the facts creates such
an estoppel against him as that he can not
| be heard to object to the jurisdiction of
that court to try the cause.
| Petitioner contends that the complaint
in the case of PhilbroolS vs. Garniss,
shows an equitable cause of action of
which the Justices Court had no juris-
diction.
| Respondent insists that the complaint
shows claim for money had and receiv-
ed by defendant to plaintiffs use. A re-
ceiver may be appointed in an action of
ejectment, after judgment during the
tendency of the appeal, and reading the
application OF the petitioner by the very
| oiiit CuIOWH ut1Ou lue QucSllOn Dy
| the meager facts stated as to the character
of the action of Harrison VS.. Lynch it ap-
| pears to be a proceeding in ejectment.
We then find the petitioner appointed re-
ceiver, after judgment for the pla ntiff
and pending proceedings for appeal, for
| the express purpose OF collecting and pre-
serving the rents of the land Thereafter
the motion for new trial being granted
by the lower court, and upon the succeed
ing trial judgment going for the defend
| ant the powers and duties of the receiver
were clearly at an end.
Though receiver may be and gen.
orally is appointed upon the application
of one of the parties interested in the
property which he is to preserve, his
holding is not merely for the benefit of
such party, or of any other party: it is
the holding of the court for the equal
benefit of all persons who may be finally
adjudged by the court to have rights in it;
where, however, the rights of the parties
are established, he is considered as hold
ing for the benefit of the parties entitled
to the property" Beach on Receivers,
Sec. 249.) The contention of petitioner that
that these moneys in his hands were
part of the Judgment in the case of Harri-
son VS.. Lynch ct ais, cannot be sustained.
Indeed, the necessity of a specific decree
by the court, declaring them the property
of defendant, Lynch, was not required, as
she was necessarily entitled to them by
reason of the judgment in her favor as to
the possession of the realty. If plaintiff
had finally recovered in the action he
could have had no Judgment against de-
fendant Lynch for these moneys, for she
never had possession of them; they were
in the custody of the court; the amount
was certain, and had been preserved by
the receiver IN specie, for the only purpose
that it might be delivered upon the order
of the court to the party who should
finally recover in the action.
The order of the court decreeing that
this money was the property of Mary J.
Lynch was not a judgment for the rents
and profits of the realty it was no money
Judgment whatever; 1t was no Judgment
upon which an execution could have
issued againt anybody. 1t was not
judgment against the plaintiff, and it was
not a judgment against the receiver. for
he was not party to the suit.
This decree, then, establishing the
status of the funds in the hands of the re-
ceiver, was not part of the judgment
within the pleadings, or the proof in the
case of Harrison VS.. Lynch. Neither was
the assignment by Mary j. Lynch to
Philbrook of the moneys in the hands of
! the receiver an assignment of part of
demand. She assigned her entire de-
mand, amountingsto $3.50. The mere fact
that this money was held by the receiver,
subject to a lien upon it, for his fees and
costs of receivership, and was thus
| charged with such costs, which he was
entitled to deduct from the amount upon
the settlement of his account, in no way
4 effects the question OF Mary J. Lynch's
assignment of the entire demand. Her
| act in the matter was as entire, full and
complete as it were possible to make it, and
| it effected the exact result contended for
by petitioner, for it obliterated the entire
demand. What the assignee failed to OBJ
tain of the demand, Garniss, the debtor,