Humphreys v. Hopkins

Beatty, C. J.

The plaintiffs in this action are receivers of the road and other property of the Wabash, St. Louis, and Pacific Railway Company. They were appointed by the United States circuit court for the eastern district of Missouri, May 25, 1884, by an order *552made in an action to which the railway company was a party, and were thereby authorized to take possession of said road, to manage, control, and operate it, and preserve and protect all its property. At the date of their appointment a certain freight-car belonging to the company was at Toledo, in the state of Ohio, where, on the 29th of May, 1884, it came into their possession. It was subsequently brought by them in the course of their business as receivers to the city of St. Louis, in the state of Missouri, a place within the jusisdiction of the court by which they were appointed. On the 16th of March, 1885, they loaded the car with freight consigned to San Francisco, intending that when the freight was unloaded at San Francisco the car should he returned to St. Louis. While the car was in San Francisco it was attached by the defendant, as sheriff of San Francisco, in a suit brought by Henry Payot and Isaac Upham against the railway company. Payot and Upham were citizens of California, resident and doing business in San Francisco.

This action was thereupon commenced by the plaintiffs to recover the car so attached. The judgment of the superior court was in their favor. Defendant appeals.

The question presented by the appeal is, whether a receiver appointed in a foreign jurisdiction to take possession of the property of a railway corporation and carry on its business, and who in pursuance of his authority as such receiver has taken the property into his actual possession within the jurisdiction of the court by which he was appointed, can hold such property against the claim of a citizen of this state, who, upon finding the property here, has, in pursuance of our laws, caused it to be attached as security for his just demands against the railway company.

Counsel for appellant contends for the proposition that a foreign receiver has no capacity to sue in his official character in our courts, but we do not understand *553the authorities to sustain this extreme view. The question, however, need not be decided in this case, for the plaintiffs, besides being receivers of the road, had an actual and lawful possession of the property at the time of its seizure, and by virtue of that possession could undoubtedly have recovered it from a mere trespasser.

But their mere possession of the property of a foreign debtor cannot be held to exempt it from the claims of attaching creditors. A debtor cannot, by placing or allowing his property to be in the possession of a third party, screen it from attachment. However lawful the possession of the bailee, the property is still subject to attachment or garnishment at the suit of a creditor of the owner. Such rights as the bailee may have to the use or possession of the property, and such liens as he may have upon it, will of course be protected, but, saving the rights of the bailee, the creditor may take it.

The question in such cases, therefore, is not as to the lawfulness of the bailee’s possession, or his right to recover the property from a mere trespasser; it is a question as to which right is superior,—his or the attaching creditor’s.

And such is the question here. Conceding, as we think must be conceded, that these plaintiffs could have recovered the car in controversy from a mere wrong-doer by virtue of their lawful possession at the date of the seizure, if not by virtue of their office, still it remains to be decided whether they could reclaim it from the defendant, who justifies under a writ of attachment issued at the suit of citizens of the state of California to enforce a just demand against the owner of the property.

The solution of this question depends upon the effect to be given to the order of the court of Missouri, under whose appointment the plaintiffs are acting.

For, we repeat, the mere possession by the plaintiffs of the debtor’s property, however lawful, does not screen it from attachment. To show a right superior to that of *554creditors, they must fall back upon the order appointing them receivers, and must depend upon the comity of this titate as to the effect to be allowed that order.

The substance of that order has been already stated. It does not pretend to vest the title to the property of the railroad company in the receivers, it merely directs them to take possession of and use the property for the benefit presumably of creditors of the company who have resorted to that particular forum for the enforcement of their debts.

The authorities as to the effect to be given in other jurisdictions to such orders are collected in a note to the case of Alley v. Caspari, 6 Am. St. Rep. 185. The result is summed up by the editor (p. 189) as follows: “We deduce, therefore, from a thorough examination of the cases and text-books upon the subject, that the great weight of authority is, and should be, in keeping with the decision rendered by Mr. Justice Wayne in Booth v. Clark, 17 How. 334, that a foreign receiver has no right to sue in another state; but that, on the ground of comity, the court will, in a just and proper exercise of a sound legal discretion, permit such suits to be maintained for the purpose of thereby doing justice where the good of a large number would demand it, by recognizing the orders and judgments of the courts of a sister state. But in none of the cases is such right to sue conceded, or the suit permitted to be maintained by the foreign receiver, where the claim sought to be enforced conflicts with the rights of citizens or creditors in the state where the suit is brought.”

We think that the effect of the decisions is correctly stated in this extract from Mr. Freeman’s note, and we think that in this case justice to our own citizens requires that we should not extend the principle of comity so far as to award this property to the representatives of creditors residing in other states, and who are seeking to hold it for their own exclusive benefit.

*555The judgment and order appealed from are reversed and cause remanded.

Fox, J., Works, J., and Paterson, J., concurred.