kennedy v. i., c. & l. r. co.
97
Kennedy v. I., C. & L. R. Co.—In re Petition of Frank Cork, Administrator.[1]
(Circuit Court, S. D. Ohio.July, 1880.)
1. Receivers—Suits Against.—Property in the hands of a receiver is in custodia legis. His possession is the possession of the court appointing him. No suit can be brought against him to disturb his possession, or to charge him with liability for an act done in the performance
of his duties as such receiver, without the consent of such court. Any one instituting such a suit without leave may be enjoined or attached for contempt. The proper proceeding is to apply to the court appointing the receiver by petition, setting forth therein the grounds of complaint. Thereupon the court will direct a trial by a jury, reference to a master, or such other mode of proceeding as, in its discretion, it may deem best.
2. Same—Same—Constitutional Right of Trial by Jury.—The right of trial by jury in such a proceeding against a receiver, on a common-law cause of action, is not an absolute right, but the granting or withholding thereof lies within the sound discretion of the court. Such a proceeding is not a “suit at law” within the provision of the constitution guarantying the right of trial by jury.
3. Railroads—Suit Against Receiver—Trial by Jury.—Upon application of bond holders of the Indianapolis, Cincinnati & La Fayette Railroad, in a suit to foreclose their security, a receiver was appointed to operate the road. During such operation a train ran over a Mrs. Cork. A petition was filed in the foreclosure proceeding by her husband, as administrator, to recover damages for her death. Held, that petitioner was not entitled to a trial by jury.
Upon motion for a trial by jury, The facts sufficiently appear in the opinion.
D. Thew Wright, for Cork, petitioner.
Hoadly, Johnson & Colston, for receiver.
Baxter, C. J.The defendant, a railroad corporation, issued a large number of bonds, and executed a mortgage on its road, franchise, and property, to secure their payment; and, having failed to pay the interest as it accrued, a bill was filed in this court to foreclose the security. On complainant’s application a receiver was appointed to preserve and operate the prop-
- ↑ Reported by Messrs. Florien Glauque and J. C. Harper, of the Cincinnati Bar.
