CHAPTER XXVI.

ONE CAUSE ABIDING THE EVENT OF ANOTHER.

§ 457. In general.

Frequently, where two causes are substantially the same, and the trial or appeal of one will practically decide the merits of the other, a stipulation is entered into that one cause shall abide the determination of the other, and that final decree may be entered in accordance with such determination.1 In the case of suits actually pending, an attorney has power to agree that one suit shall abide the event of another suit involving the same question, and the client will be bound by this agreement.2 Such a stipulation does not lose its effect because a decree rendered in one cause is reversed on the ground of error in overruling a demurrer to the bill, the pleadings in that cause being thereupon amended without making any substantial change in the issues and final judgment on the merits. But it is held that, where the parties to a suit agree that the decision of their suit shall be controlled by the decision in another suit in which an appeal has been prayed, the refusal of the court to allow the appeal because of the failure to present the bill of exceptions in time does not conclude the parties, but remits them to their respective rights under their own cause.1

§ 458. Form of order to abide event of another suit.

[Title of court and cause.]

This cause coming on this day to be heard, the complainant being present in open court by E. F., his solicitor, and the defendant being

1 Gillmore v. American Cent. Ins. Co., 65 Cal. 64, 2 Pac. 882; Dilworth v. Curts, 139 Ill. 508, 29 N. E. 861.

2 Stone v. Bank of Commerce, 174 U. S. 412; Ohlquest v. Farwell, 71 lowa, 231, 32 N. W. 277; North Missouri R. Co. v. Stephens, 36 Mo. 150, 88 Am. Dec. 138; Eidam v. Finnegan, 48 Mina. 53, 50 N. W. 933, 16 L. R. A. 507. See, also, Scarritt Furniture Co. v. Moser, 48 Mo. App. 543.

& Gilmore v. American Cent. Ins. Co., 67 Cal. 366, 7 Pac. 783.

4 Moore v. Martin (Miss.) 18 So. 119. It has been held that, where there was a stipulation that one cause should abide the result of the

likewise present by G. H., his solicitor, and both parties consenting and agreeing in open court that the issues in this cause are identical with those of another suit pending in this court, entitled "L. M. vs. N. M.," the general number thereof being 4,799, and both said parties agreeing and consenting to the entry of this order, and the court being fully advised in the premises,

It is ordered that all proceedings in this cause shall be, and they are hereby, stayed until final decision and decree in said cause wherein the said L. M. is complainant and the said N. M. is defendant, and, in case of an appeal in said last-named cause, then said proceedings are and shall be stayed until the final determination of said appeal, and upon such final determination, decree, and decision in said cause, wherein the said L. M. is complainant and the said N. M. is defendant, either party to the above-entitled cause, without notice, shall and may cause to be entered a decree in this cause corresponding to and like the said final decree in the said cause wherein the said L. M. is complainant and the said N. M. is defendant, and of the same date as such decree in said other cause.

L. N.,
Judge.5

decision of the appeal in another cause, and the appeal was not decided on the merits, the party could not be relieved from his stipulation on the ground that the action of the appellate court was not in contemplation of the parties when the stipulation was signed. McNeill v. Town of Andes, 40 Fed. 45. But, to the contrary, see Magnolia Metal Co. v. Pound, 60 App. Div. 318, 70 N. Y. Supp. 230. It has been held that, where a stipulation is filed in a cause that such cause may be tried, and the event of that suit shall control the judgment in other pending suits of the same character, such stipulation is not merely an independent executory agreement, but operates presently to affect the status of the cause itself, and invests the complainant with rights in respect to its conduct which he otherwise would not have had, and of which neither the opposite party nor the court can lawfully divest him, and that, in such case, the defendant, having recognized the effect of the stipulation, had no right to dismiss his appeal in the cause stipulated to be tried. McKinley v. Wilmington Star Mining Co., 7 Ill. App. 386. It is held in Illinois that a stipulation that a cause shall abide the result of an appeal in another case is a part of the record, and need not be preserved by a certificate of evidence. Dilworth v. Curts, 139 Ill. 508, 29 N. E. 861.

The foregoing form is taken from Gillmore v. American Cent. Ins. Co., 65 Cal. 64, 2 Pac. 882. For other cases where stipulations concerning abiding the event have been made and acted upon, and appear in the reported cases, see Stone v. Bank of Commerce, 174 U. S. 412; Niagara Fire Ins. Co. v. Scammon, 35 Ill. App. 582; McKinley v. Wilmington Star Mining Co., 7 Ill. App. 386; Dilworth v. Curts, 139 Ill. 508, 29 N. E. 861; Moffitt v. Jordan, 127 Cal. 628. 60 Pac. 175; Herman v. Michel, 36 App. Div. 127, 55 N. Y. Supp. 359; Scarritt Furni ture Co. v. Moser, 48 Mo. App. 543.

CHAPTER XXVII.

RECEIVERS.

§ 459. Definition of receiver.

any

A receiver is a person appointed by the court to receive the rents and profits of land or other property or things in question in the court pending a suit, where it does not appear reasonable that either party should do it. He is appointed for the benefit of the interested party who makes the application, and for others who may choose to avail themselves of it, and who may have an interest in the property proposed to be put in the hands of a receiver. The immediate moving cause of the appointment is the preservation of the subject of the litigation, or the rents and profits of it, from waste, loss, or destruction, so that there may be some fruits to gather after the labors of the controversy are over. The ulterior objects of the appointment are those contemplated by the suit itself. They are the several kinds of relief which may be asked for and obtained by the complainant's bill.1 A receiver is an officer of the court, and he is considered as truly and properly the hand of the court, but his appointment does not involve the determination of any right, or affect the title of either party in any manner whatever, not even so as to prevent the running of the statute of limitations. Yet an application for such an appointment can only be made by those who have an acknowledged interest, or where there is strong reason to believe that the party asking for a receiver will recover, or where the property itself, or its rents or profits, are in danger of being materially injured or totally lost. The court has no

11 Barbour, Ch. Pr. 658, 659; High, Receivers, § 1; Chase's Case, 1 land (Md.) 213; Anonymous, 1 Atk. 489.

Barbour, Ch. Pr. 658; Chase's Case, 1 Bland (Md.) 213; Williamson ✓ Wilson 1 Bland (Md.) 421. To justify the appointment of a re

jurisdiction to appoint a receiver unless a cause is depending, except in cases of idiots and lunatics, with respect to whom the jurisdiction is a particular one. A receiver will not be appointed in the case of an infant, however, without a bill filed.* § 460. When a receiver will be appointed.

To warrant the interposition of a court of equity by the aid of a receiver, it is essential that the complainant should show, first, either a clear legal right in himself to the property in controversy, or that he has some lien upon it, or that it constitutes a special fund out of which he is entitled to satisfaction of his demand, and, secondly, it must appear that possession of the property was obtained by the defendant through fraud, or that the property itself, or the income from it, is in danger of loss from the neglect, waste, misconduct, or insolvency of the defendant. The power to appoint a receiver and put him in possession of a defendant's property is one of the most important. prerogatives of equity, and only to be exercised by the court when it is clear that there is no other adequate means of doing justice between the parties, or preventing the accomplishment of a wrong. A court of equity is not justified in arbitrarily taking the possession of property from one holding it under

ceiver, there must be a reasonable probability of success on the part of the complainant, and the property, the subject-matter of the suit, must be in danger. Bainbridge v. Baddeley, 3 Macn. & G. 413; Ryder v. Bateman, 93 Fed. 29.

1 Barbour, Ch. Pr. 659; Anonymous, 1 Atk. 489; Ex parte Whitfield, 2 Atk. 315; In re Brant, 96 Fed. 257, fully reviewing the authorities; Baker v. Backus' Adm'r, 32 Ill. 96; Pressley v. Harrison, 102 Ind. 19, 1 N. E. 188; Guy v. Doak, 47 Kan. 236, 27 Pac. 968.

41 Barbour, Ch. Pr. 659. See, however, In re Brant, 96 Fed. 257, citing 2 Daniell, Ch. Pl. & Pr. (6th Ed.) 1734.

5 High, Receivers, § 11; Mays v. Rose, Freem. Ch. (Miss.) 703.

6 Schack v. McKey, 100 Ill. App. 294. Where it appears conclusively from allegations of the complainant's bill that he has a full, complete, and adequate remedy at law, there can be no necessity for an order appointing a receiver and turning over to him personal property to which another claims title by right of purchase and payment, and of which he is in possession, without giving him an opportunity to establish his claim. Schack v. McKey. 100 Ill. App. 294.

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claim of valid title merely because another disputes the holder's claim. No attempt will be made to state all the cases in which the court will appoint a receiver, nor would it be a very easy matter to do so, inasmuch as the exercise of the power of appointment of this officer rests within the sound discretion of the court.8

A few of the most customary instances, however, are: Upon creditors' bills for the purpose of reaching the property of the defendant after the return of an execution at law unsatisfied out of the defendant's property; or where a debtor in failing circumstances assigns his property to a person who is insolvent, in trust for his creditors;1o in mortgage foreclosure cases, where the premises will not, upon a sale thereof under the decree, bring sufficient to pay the debt and costs, and where the party who is personally liable for the mortgage debt is irresponsible;11 in partnership cases, upon a bill filed by one of the partners to close up a partnership concern, where it is a matter of course to appoint a receiver if the parties cannot agree among themselves as to the disposition and control of the property,1 or where either party has a right to dissolve the partnership, and

12

7 Schack v. McKey, 100 Ill. App. 294; First Nat. Bank of Sioux City v. Gage, 79 111. 207; Beach, Rec. § 5.

81 Barbour, Ch. Pr. 659; Verplank v. Caines, 1 Johns. Ch. (N. Y.) 57; Wood v. Grayson, 16 App. D. C. 174; Meyer v. Thomas (Ala.) 30 So. 89; Ryder v. Bateman, 93 Fed. 16; Sage v. Memphis & Little Rock R. Co., 125 U. S. 361; Lyle v. Commercial Nat. Bank, 93 Va. 487, 25 S. E. 547. The subject of receivers is so voluminous in its nature that only a bare outline of the practice will be attempted here. Reference is made to the works of Smith, High, Edwards, Kerr, Bennet, and Gluck and Becker. The latter work treats of receivers of corporations.

1 Barbour, Ch. Ph. 659; Bloodgood v. Clark, 4 Paige (N. Y.) 575. 101 Barbour, Ch. Pr. 660; Haggarty v. Pittman, 1 Paige (N. Y.) 298. 111 Barbour, Ch. Pr. 660; Sea Ins. Co. v. Stebbins, 8 Paige (N. Y.) 565; Bank of Ogdensburgh v. Arnold, 5 Paige (N. Y.) 38; First Nat. Bank of Joliet v. Illinois Steel Co., 174 Ill. 140, 51 N. E. 200. A receiver will not be appointed, however, if the mortgage is impeached or questioned. 1 Barbour, Ch. Pr. 661; Leahy v. Arthur, 1 Hogan, 92; Darcy v. Blake, 1 Moll. 247.

121 Barbour, Ch. Pr. 662; Martin v. Van Shaick, 4 Paige (N. Y.) 479.

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