Opinion
10-26-1888
MOORE v. MERCER WIRE CO.
James Buchanan, for the motion. Mr. Backes, contra.
(Syllabus by the Court.)
On motion to attach for contempt.
For opinion on the application for attachment, see ante, 305.
James Buchanan, for the motion. Mr. Backes, contra.
BIRD, V. C. It now appears that the respondent has returned the engine, which it was said he took by force out of the possession of the receiver. He has not only done this, but his counsel very frankly says, that when he took it away he believed that he had a perfect right to the engine, and did not intend to do any violence to the right or claim of the receiver. This course is to be commended. The respondent, no doubt, sees, as every law-abiding citizen cannot fail to see, that the court can do no less than to protect the receiver, in every such case, in his possession of the property which passes to his hands by virtue of the act of the legislature, and of the orders of the court made in pursuance of said act. The court only acts in obedience to the law. The court only makes orders according to the direction of the statute. This being so, every good citizen will at once admit that, if such orders be not respected, it is not the will of the court that is set at naught alone, but the most solemn enactments of the legislature; and it will also be admitted that such interference could not be tolerated without both government and society falling to pieces. There is a legal method by which the rights of every man may be asserted and protected. The possession of the receiver in this as in every other such case was the possession of the court, or of the law; and if it should appear to, or be believed by, any person that such possession was unlawful, he has the same remedy against the receiver that every citizen has against his neighbor, when there is a dispute between them respecting the title to property. The courts are open, and through them every such dispute can be settled. In a case like the present, it was the duty of the respondent to present his petition to the court, stating his claim to the engine, and to ask for leave to bring his suit against the receiver for the recovery of the engine. When the court has obtained jurisdiction of the case, and has possession of the assets concerning which the suit is instituted, it never allows such assets to pass from its hands without an order. This is the practice, in every stage of the devolution of property, when such property is once in the hands of the law; that is, of the court, the instrument of the law. That there must be leave obtained, before there can be any intermeddling with the property in the hands of the receiver, see Day v. Telegraph Co., (Md.) 7 Atl. Rep. 608; Glenn v. Busey, MacArthur & M. 454; High, Rec. §§ 134, 135, 139; Evelyn v. Lewis, 3 Hare, 472; De Winton v. Mayor, 28 Beav. 200. The language of Lord ROMILLY, M. R., in the last case cited, is worthy of repetition: "I apprehend this is clear: that the court never allows any person to interfere, either with money or property in the hands of its receiver, without its leave, whether it is done by the consent or submission of the receiver, or by compulsory process against him. The court is obliged to keep a strict handover property in the hands of a receiver, or which, by virtue of the order of the court, may come in his hands, in order to preserve entire jurisdiction over the whole matter, and to do that which is just in the case between the parties." Although there may be a superior title, and that plainly appearing, the court must be first applied to. Noe v. Gibson, 7 Paige, 513; Angel v. Smith, 9 Ves. 335; Brooks v. Greathed, 1 Jac. & W. 178; Beach, Rec. §§ 213, 224, 225; 2 Daniell Ch. Pr. 1743, 1744, and cases cited. While there is no disposition on the part of any one connected with these proceedings to impose any punishment on the respondent, the circumstances of the case will not permit that he shall be entirely discharged. I arrive at this conclusion, not alone because of the strong hand with which he carried off the engine, but especially because he so energetically resisted the right of the receiver to have the possession of the machine, and maintained his right to take it in the manner he did. He did not come in and say, "I thought this engine was mine, and still think so, but I now see I should have adopted other means to get the possession of it," and at once surrendering it; but he continued to assert his just claim and rightful possession until after an argument upon the merits of the issue. With these things before me, I am unable to adjudge the respondent as wholly innocent or excusable. I will advise an order that he is guilty as of a contempt of this court, and that he do pay a fine of five dollars therefor into the clerk of this court for the use of the state, and also the costs of this proceeding.