Railton v. People

83 Ill. App. 396, 1898 Ill. App. LEXIS 804

• Court: Appellate Court of Illinois
• Decided: June 22, 1899
• Status: Published

Opinion

Mr. Justice Sears

delivered the opinion of the court.

The only question raised by the briefs of counsel for appellant is as to the jurisdiction of the Superibr Court to empower that court to enter and enforce the order of April 22, 1898. All other assignments of error are abandoned by the limitation of the briefs filed.

It is urged in effect that because .the appellant was only served with process on April 22, 1898, and the return term of court, at which she was obliged to appear and defend, had not yet arrived when the order of April 22, 1898, was entered, therefore that order was entered by the court when it had no jurisdictional power to control appellant's property, and, as to her, it was null and of no effect. It is contended that no'adjudication of the rights of appellant could be had until she had been not only made a party to the proceeding, but as well had her day in court to be heard in defense of her rights.

Counsel confuse the interlocutory control of the property, by appointment of a receiver penciente lite, with a final order determinative of the rights of the litigants. It is true that the interests of appellant could not be finally disposed of in this suit until she had been given her right to be heard in defense. But here there is no final adjudication. The court merely sought by its interlocutory order 1 to preserve the estate until a final determination might be had. When the order extending the receivership to include this property was entered, appellant had not only been served with process, but the record shows that she was present in court, and that her testimony was taken. That testimony is not here set forth by the record. 'We are to presume that it was such as made the order a proper one.

We can not assent to the contention of counsel that the court was powerless to appoint a receiver pendente lite until after the appellant, claimant of the property, had gone through the procedure of demurring or pleading to or answering the bill of complaint. Such a holding would make interlocutory orders appointing receivers pendente lite impossible, for after the answer or plea, the same reasoning would require a waiting for final adjudication.

The court had power to act. The propriety of the order, if there was power, is not questioned. ISTo appeal was prosecuted from the original order appointing the receiver, or from the later order extending the scope of the receivership. This appeal is from the order punishing appellant for contempt of the court in disregarding that order. It is not contended that the order was improper if the court had the power to act. The order is affirmed.