Opinion
No. 30724.
October 16, 1933.
Petition for discovery did not charge any facts upon which to base relief.
APPEAL from the Chancery Court of Quitman County.
P.H. Lowrey, of Marks, for appellants.
The court appointing the receiver had the right, and it was its duty, to require performance of the decree, which might be done at the suggestion or request of the receiver, or other interested parties, or by the court of its own motion.
23 A. E. Enc., p. 1086, sec. 2; 53 C.J., pp. 108 and 109, secs. 131 and 132; Griffith's Chancery Practice, pp. 504 and 505, sections 475 and 476.
While the general rule may be that a lien by the petitioning creditor and a pending suit are requisites of the appointment of a receiver, both of these requisites existed at the time of the appointment of the receiver in this case. But it is equally well settled that the court may appoint a receiver to execute or carry out and enforce the decree.
53 C.J., p. 47, sec. 34; 23 R.C.L., p. 13, sec. 7; 23 R.C.L., p. 12, sec. 5; 23 A. E. Enc., p. 1016, sec. 12; Griffith Mississippi Chancery Practice, chap. 24 on Receivers and particularly secs. 470, 475, 476, 477, 478 and 481; 23 R.C.L., chapter on Receivers, and particularly secs. 9, 23, 26, 36, 42, 58, 59, 67, 68 and 76; Havermeyer v. Superior Court, 18 Am. St. Rep. 226, 230.
Roberson Cook, of Clarksdale, for appellants.
The appellees failed to perform the direction of the decree and failed to deliver to the receiver certain personal property which is the subject of the dispute reflected by this record. By formal petition, appellants notified the court of the failure of the appellees or some of them to perform its decree. Appellees interposed a motion to strike, and the court, apparently being of the opinion that the case was no longer a pending cause, sustained the motion to strike. In effect, the court below held that it was without power to require the appellees to perform the provisions of its decree. Such holding, it is respectfully submitted, is contrary to a very long line of decisions in this state.
Mississippi Chancery Practice, Griffith, sec. 649, pp. 756 and 757; Goff v. Robins, 33 Miss. 153; Griswold v. Simmons, 50 Miss. 123; Brandon v. Bingaman, 39 Miss. 505.
P.L. Denton and T.N. Gore, both of Marks, for appellees.
The order appointing the receiver should specify the duties and powers of the receiver and order the defendants to deliver up the property to the receiver.
Griffith's Mississippi Chancery Practice, sec. 475, p. 504.
Receivers have only such power as the court may deem proper to bestow upon them and the limits of such power must not be exceeded.
23 A. E. Enc., p. 1063, sec. 2; 23 A. E. Enc., p. 1128, sec. XXV; 53 C.J., p. 143, sec. 174; 53 C.J., p. 95, sec. 117; 53 C.J., p. 89, sec. 107; 53 C.J., p. 160, sec. 200; 53 C.J., p. 148, sec. 187.
As to the requirements of a bill of discovery we cite generally, chapter XXII of Griffith's Mississippi Chancery and especially sections 429 and 430.
Appellants in their bill asked that the Covingtons and their agents and attorneys be required to file with their answer a full and complete itemized account and inventory of all personal property left by W.T. Covington and owned by him at the time of his conveyance to his wife, including all accretions, accumulations, and additions to the property in their possession or under their control.
In appellants' petition, to which the court sustained a demurrer, it was stated, in substance, that they were informed that all the property required by the decree to be turned over and delivered to the receiver had not been so turned over and delivered, and that there was in the possession of other persons, known to the Covingtons or some of them, certain personal property consisting of live stock, farm implements, notes, accounts, and choses-in-action, which, under the decree, should be turned over and delivered to the receiver, a description of which was to the appellants and the receiver unknown, and that there was also in the hands of Mrs. Ruth L. Covington, one of the defendants, "certain of said property." The prayer was that they be required by a proper order of the court to forthwith surrender and deliver to the receiver "all such property required by said decree to be turned over to him, which is now in the possession of said defendants or any of them, and that they also be required to file in this cause forthwith a full and complete list and description of such property as has not been turned over to said receiver, including such of the said property as is not in their possession but of which they have knowledge or information, and that they also be required to assist the said receiver in obtaining the possession of said property."
The petition is in the nature of a bill for discovery, and is governed by the rules which apply to such bills. Neither the bill nor the petition for discovery charged any facts upon which to base relief. There was no allegation in either of them that the facts charged to exist were known to the complainant and the petitioners, nor was there any charge that the facts set out were based on their information and belief, and there was no allegation of diligence in trying to discover what property was withheld, who was in possession of it, or a description of it; nor was there any allegation that demand had been made on the defendants that they turn over to the receiver any particular property, and that they had refused to do so. Griffith's Chancery Practice, sections 429 and 430, and authorities cited.
Affirmed.