Hall v. Wayne Circuit Judge

Hooker, J.

The circuit court in chancery made an order appointing a receiver, and requiring defendants to deliver over to said receiver all property constituting a stock of dry goods owned by Richardson and others, which was in the possession of other defendants as mortgagees. The bill was filed under 3 How. Stat. § 8749o, and the order was made pendente lite. A motion was made to vacate said order, which was denied,' and an application for mandamus to compel it is made.

This order attempts to divest possession of property on a preliminary inquiry, and, if not an absolute nullity, was improvidently made. Port Huron, etc., R. Co. v. St. Clair Circuit Judge, 31 Mich. 456 ; People v. Simonson, 10 Mich. 335 ; Barry v. Briggs, 22 Mich, *396 201 ; Sailing v. Johnson, 25 Mich. 489 ; People v. Jones, 33 Mich. 303 ; McCombs v. Merryhew, 40 Mich. 725 ; Tawas, etc., R. Co. v. Iosco Circuit Judge, 44 Mich. 481 ; Jones v. Schall, 45 Mich. 380 .

But, as shown by most of the cases cited, and many others that might be cited, the order is appealable, and mandamus should not be resorted to in such cases, as we have repeatedly held. The case of Scott v. Wayne Circuit Judges, 58 Mich. 314 , is in point. We must, therefore, deny the writ, but we have no doubt that the circuit judge will vacate the order upon a renewal of the application, and upon being advised of the view taken by this court. Neither party will be allowed costs.

The other Justices concurred.