Simmons v. Henderson

1 Free. Ch. 493

• Court: Mississippi Chancery Courts
• Decided: July 1, 1844
• Status: Published

Opinion

The Chancellor.

This case was submitted on motion for the appointment of a receiver. The answer is a full and circumstantial denial of the grounds laid by the bill for the appointment of a receiver. The answer is clearly evidence against the bill, and there are no affidavits or other form of testimony in support of the bill. These motions, like all other questions depending upon matters of fact, must be decided with reference to the evidence adduced on the one side or the other. A plaintiff is entitled to the appointment of a receiver only when the grounds laid in his bill are admitted by the answer or are established >by his proofs. According to the practice in England, on motion for the appointment of a receiver before answer, the plaintiff is required to adduce affidavits of the truth of his bill. Smith’s Chan. Prac. 630; 18 Ves. 283. That practice has not been adopted in this state. Here, where a bill is sworn to by the plaintiff, it has been decided sufficient; but where the motion is made on bill and answer, and the answer, as in this case, is a denial of the equity of the bill, there is nothing left upon which to sustain the motion. In such case, if the plaintiff wishes to succeed, he must introduce evidence to disprove the answer. The counsel for the motion referred to the defendant’s account, settled by him with the probate court of Warren county, to show various errors, consisting in over charges and mischarges, and it was insisted that the charges of fraud and mismanagement in the bill were thus fully made out. I do not think it competent for me to look into the accuracy of the executor’s account, with a view, to support the grounds upon which this motion is made. The account appears to have been examined and allowed by the appropriate tribunal, which would make it at least yrima facie evidence for the plaintiff in this collateral enquiry. But suppose the account to be erroneous, the probate court is the proper tribunal for its correction, upon a final settlement with the executor, and this court cannot base any action upon a matter over which it has no jurisdiction or control. In the case of Vertner & Wife v. Griffith’s Administrator, where there was a palpable and obvious error on the face of the administrator’s account, settled with the probate court, the High Court of Errors, reversing the opinion of this court, held, that a court of equity had no jurisdiction of the matter.

Whether this court has the power to appoint a receiver in a case situated like the present, or whether that power can be exercised by the probate court, are questions not necessary to be decided in this case. In the case of Carmichael et al. v. Browder, 3 Howard 258, the court say: “As it may in some degree tend to prevent future useless litigation, we deem it proper to remark, that there are but few if any cases of administration, in which the powers of the probate court are not altogether adequate to the necessary relief. Indeed, its powers may be said to be co-extensive with those of a court of equity.” Now as the power of a court of equity to appoint a receiver in a case like the present, would have been undoubted, it would seem according to.that decision that the appointment might be made by the probate court. This is not the ground however upon which I decide the present motion. It is that the ground laid by the bill is denied by the answer, and is not supported by proof. The motion is overruled.