Cagill v. Wooldridge

67 Tenn. 580

• Court: Tennessee Supreme Court
• Decided: April 15, 1876
• Status: Published

Opinions

McFarland, J.,

delivered the opinion of the court.

Toof, Philips & Co. caused fourteen bales of cotton to be attached as the property of R. E. Treviathen, by process from the Second Circuit Court of Shelby county. Shane, Harris & Co. brought an action of replevin to recover the property from the sheriff. Afterward W. J. Cagill was substituted as plaintiff, and Toof, Philips & Co. as .defendants in the action, and the cause was subsequently revived against Wooldridge & Oliver, assignees of Toof, Philips & Co. The trial resulted in a verdict and judgment for the defendants. The plaintiff has appealed in error.

The case which the plaintiff insists was made by the proof is, in brief, that in certain litigation in the State of Arkansas, in which said Treviathen was a party defendant, the details of which need not be set out, the plaintiff, Cagill, was appointed receiver of certain property and effects, and ordered to take the same into his possession, among other things the fourteen bales of cotton in controversy, and to sell said cotton, or to ship the same to Memphis or elsewhere for that purpose, and to hold the proceeds subject to the order of the court; that the appointment was made upon allegations in the pleadings giving the court power and jurisdiction to make the appointment ; that the cotton was then within the jurisdiction of the court in the State of Arkansas, and was actually taken into possession by the plaintiff, Cagill, and shipped to Shane, Harris & Co. at Memphis for sale,, where it was attached as the property of Treviathen by Toof, Philips & Co., as before stated.

The circuit judge charged the jury that “in order to entitle the plaintiff to recover, it is necessary that he shall have established some general or special property in the cotton in controversy; it is not sufficient for him merely to have established the fact that he was appointed receiver by the Chancery Court of Independence county, Arkansas, and came into possession of the cotton by virtue of such appointment, and if' you find from the evidence that he has shown no other right to the property than as such receiver, and that the parties whom defendants represent, Toof, Philips & Co., were creditors of Treviathen, and attached the property in Memphis as the property of Trevia-then, you will find for the defendant.”

This was the entire charge, although further specific instructions were asked by the plaintiff’s attorney. We think the charge is erroneous, and that the judgment must be reversed. It is true that if a receiver, appointed by the courts of another State, should, by virtue of such appointment, seek to recover in our courts property to which others had acquired rights here, the claim would not be enforced. That is, our courts would not in such a case lend their aid to enforce and carry out the order of the foreign court as to property within our jurisdiction. The right of the receiver as such could not be recognized in our-courts. But where the court of a sister State, having jurisdiction of the parties and subject matter, and having the property within its actual control, appoints a receiver to take possession of and sell the property,, and this order is executed by the property being actually taken into possession by the receiver, we think beyond doubt this would give to the receiver against the parties to the litigation, and those claiming through them, a special property and right of possession that would enable him to maintain an action of replevin, and that this right would not be lost by sending the property to this State for sale. To this extent we would respect the orders and judgments of the courts of sister States. The receiver can, in such case, maintain the action in his individual capacity. See Graydow v. Church, 3 Michigan. We do not think the authorities referred to by the counsel for the defendants establish a contrary doctrine. Of course we decide nothing as to the other questions argued, or as to whether the proof sustains the plaintiff’s case.

The charge being erroneous upon the material question, the' judgment must be reversed.