Ray v. Trice

42 So. 901, 53 Fla. 864

• Court: Supreme Court of Florida
• Decided: January 15, 1907
• Status: Published

Opinion

Taylor, J.

(after statévg the facts) : The facts of this case are anomalous. We have been unable to find another case exactly like it, and will, therefore, have to solve it by the application of general principles.

E'n passant we will say that it would have been more strictly consonant with the rules of judicial comity had the judge of the 5th judicial circuit recused himself from making the order in the place and stead of the judge of the 6 th judicial circuit during his absence from his circuit, granting leave to Walter Ray to sue the receiver Trice, inasmuch as the suit to which said receiver was thereby permitted to be made a party defendant was pending within the judicial circuit presided over by him, the said' judge of the 5th judicial circuit. The order of injunction also made by the judge of the 5th judicial circuit whereby the receiver appointed by the judge of the 6th judicial circuit in a cause pending within his jurisdiction, was restrained and enjoined from making any application to the judge whose receiver he was, looking towards securing possession of the property to which he had claims as such receiver, was altogether ill-advised, irregular, and without authority, and tended directly to bring aboht that unseemly conflict of jurisdiction between two courts of the same state of equal and co-ordinate jurisdiction within their respective territories, to prevent which is one of the: chief foundations for the rule requiring the obtainment of the leave of the court appointing a receiver as a prerequisite to the right to sue such receiver either within the jurisdiction of his appointment, or in any other forum. Winfield v. Bacon, 24 Barb. (N. Y.) 154. It seems to be well settled that the power to appoint a receiver and to grant leave that he shall be sued as a defendant in the form of his appointment or in that of any other jurisdiction, carries with it as a necessary concomitant the authority to revoke such leave to sue him. Henderson v. Walker, 55 Ga. 481; Central Trust Co. v. Wabash, St. L. & Pac. Ry. Co., 26 Fed. Rep. 74; Meredith Village Savings Bank v. Simpson, 22 Kan. 414. Before the order was granted giving leave to the appellant Ray to join the receiver Trice as a party defendant to his suit in Citrus county, in the 5th judicial circuit, there was no intimation of any design upon the part of Ray to amend his bill and to apply for the unique order of injunction restraining the receiver from applying to the court whose receiver he was for relief touching the properties in his official hands, but this feature of the proceeding was sprung upon him after the consent in the name of the court of his appointment had been obtained that he should be made a party defendant in the cause pending within another jurisdiction. Under these circumstances the judge of the 6th judicial circuit, whose receiver Trice was, had no authority himself, to'dissolve the injunction granted by and pending in another jurisdiction against his receiver, however, improvident such injunction might be, but all that he could properly and authoritatively do in the premises was done when he required the complainant Ray, who had obtained the injunction against his receiver, to have the same dissolved within and by the forum that had granted it, under the penalty of a revocation of the order granted to him permitting him to join such receiver as a party defendant to his suit in which such order of injunction was made.

The decree appealed from is hereby affirmed at the cost of the appellant.

Cockrell, Whitfield and Parkhill, concur; Shackleford, C. J., and Hocker, J., disqualified.