Davis v. Holden

Beach, J.

The petition is singularly brief. It simply alleges that the petitioner entered into an agreement, recorded and acknowledged according to law, with the defendant Company, whereby it was agreed that certain goods and chattels delivered by Davis to the Company should remain the property of Davis until certain payments had been made by the defendant; and that neither the defendant nor the receiver has made the payments, although the receiver is now in possession of the property. Wherefore the petitioner prays for leave, to bring suit to determine his rights under the contract.

There is no allegation or finding that Davis was the owner of the property at the time when the agreement was executed; or that the payments to be made were instalments of an agreed purchase price. On the contrary, the agreement refers to “construction work now in progress in the town of Burlington,” and recites that a large part of the equipment is located there. So far as this record shows, the transaction between Davis and the Pierson Engineering and Construction Company may have been an attempt to secure Davis for past or present advances by giving him a conditional bill of sale instead of a chattel mortgage.

*98 It also appears from the finding that the property described in the agreement was, at the time of filing the petition, in use by the receiver in carrying out contracts made by the defendant Company before the receivership.

The petition does not indicate what particular kind of an action the petitioner desires to bring against the receiver. The prayer for relief is broad enough to include, if granted, permission to bring replevin, and take the property out of the custody of the court pending the determination of the petitioner’s rights under the contract. Under the circumstances a summary dispossession of the receiver by replevin is out of the question. The property is already in the custody of the court, which is making use of it in carrying out the defendant’s contracts, in an attempt to conserve the defendant’s assets for the benefit of all concerned.

Finally, the question whether a court will permit its receiver to be sued is largely a matter of discretion. There is no reason why the Superior Court, being in possession of the property and able to administer full relief to the petitioner, should allow him to bring another action in the same court to try out his alleged title to or interest in the property.

Presumably the desire is to bring an action in the District Court of the United States, Davis being described in his petition as a citizen of New York. In such cases much depends on the character of the action. If in the nature of a suit in personam not affecting specific assets, the court of the receivership may consistently allow its receiver to be sued in another court in the exercise of its discretion. But if, as in this case, the action relates to the title to, or right of possession of, property which has already been taken into the custody of the court, “the rule that where a court has once acquired jurisdiction over a particular subject- *99 matter, it retains it free from interference by any other court, is that which governs.”

Links v. Connecticut River Banking Co., 66 Conn. 277, 284 , 33 Atl. 1003 .

There is no error.

In this opinion the other judges concurred.