Hazelrigg v. Bronaugh

78 Ky. 62, 1879 Ky. LEXIS 57

• Court: Court of Appeals of Kentucky
• Decided: September 16, 1879
• Status: Published

Opinion

JUDGE COFER

delivered the opinion of the court.

The appellants, who were plaintiffs in the Court below, alleged in substance, that in an action in the Morgan Circuit Court, of Ball & Brough v. Harrison Knowles, an attachment was sued out and levied upon a steam mill as the property of Harrison Knowles; that the mill was rented under ■an order of the Court; that G. H. Knowles became the renter and gave bond for the rent, -with the appellants, •except P. B. Turner, as sureties; that afterward the appellee Mynheer was appointed receiver in the action, and ordered to collect the rent; that he brought suit on the rent bond •and recovered judgment, which was replevied with P. B. 'Turner as surety; that in the adjudication in the suit of Ball •& Brough against Knowles no credit was given to Knowles for the rent, and no disposition made of the rent.

Upon these facts Harrison Knowles, who was one of ■plaintiffs, claims that the unpaid judgment for rent belongs to him, and that the receiver has no right to collect it, and -upon that ground applied for and obtained a temporary injunction, enjoining the receiver from proceeding to collect -it. The Court below sustained a demurrer to the petition -and dismissed it. From that judgment the plaintiffs appeal.

The judgment is right. When a receiver has been appointed and is in possession, his possession is the possession •of the Court, and may not be disturbed without leave of the Court. (Robinson v. The Atlantic and Great Western R. R. Co., 66 Penn. St., 160; Albany City Bank v. Schermerhorn, 9 Paige C. R., 372; Wiswall v. Sampson, 14 Howard, 52.)

Nor is the rule confined to property actually in the hands •of the receiver. The Court will not permit any one, without its sanction and authority be first obtained, to intercept or prevent payment to its receiver of anything which he has been appointed to receive, though it may not be actually in his hands. (Kerr on Receivers, page 167.)

The Court had directed its receiver to collect the rent bond, and he was proceeding to do so when he was arrested by the order of injunction. This was not only unauthorized, but was a contempt of Court for which the appellants were subject to arrest and imprisonment. (Kerr, page 165.)

If no disposition was made of the rent in the suit of Ball & Brough v. Harrison Knowles, the remedy must be sought in that case either by appeal or by application to the Court in that case. If the debt of the plaintiffs in that case was satisfied without the rent, the Court would have ordered the receiver to assign the judgment to Knowles. If the debt was not satisfied, then credit would have been given, or, if the status of the case was such that the Court had no power to give relief, then the remedy was by appeal to this Court, or by applying to the Court for leave to enjoin the receiver.

Judgment affirmed.