Opinion
Decided January 19th, 1925.
On appeal from an order of the court of chancery advised by Vice-Chancellor Church.
Messrs. Hudspeth Demarest, for the appellants.
Mr. J. Henry Harrison, for the respondents.
The only matter involved in the determination of the present appeal is the validity of an order of the court of chancery, made upon the application of the receivers of the New Jersey Refrigerating Company, restraining the appellants, Otto A. Lembeck and Alfred J.O. Allison, from further prosecuting actions at law, brought by them against the corporation prior to the appointment of the receivers, and requiring the transfer of those actions into the court of chancery for determination.
It is entirely settled that the court of chancery may permit an action to be brought in a court of law, having jurisdiction of the subject-matter thereof, by a creditor of a corporation against the receiver of such corporation, or may refuse such permission and compel the litigation to be prosecuted in the equity court. The mere fact that before the appointment of a receiver an action at law has been instituted against the corporation is immaterial in determining the question of the power of the court of chancery, after the appointment of the receiver, to take control of the litigation; for the judgment, if recovered by the plaintiff after the receiver has been appointed, must necessarily be enforced against the assets of the corporation in the hands of the court's receiver, and such control is an incident to the preservation and distribution of such assets.
We conclude that the making of the order appealed from was within the discretion of the court, and that it should be affirmed.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, MINTURN, BLACK, KATZENBACH, CAMPBELL, LLOYD, WHITE, VAN BUSKIRK, CLARK, McGLENNON, KAYS, JJ. 13.
For reversal — None.