Warren v. Bunch

Bleckley, Chief Justice, (after stating the above facts.) 1. A summary bearing before the chancellor in vacation may, in the exercise of his discretion, be reopened for more [126] evidence. Why not ? He sits as chancellor to determine matter pending before him in chambers, and if he lacks information upon it, why may he not allow either or both pai’ties to ixxtrodixce more evidence? By stopping the hearing at a particular point, he does not cut himself off from hearing more. The general rule is, that a court of chancery is always open, (code, §4222,)and we suppose that may apply to the chancellor when sitting to determine a matter of fact, or of mixed law aixd fact, in chambers. 2. What was to bebe determined was the disposition to be made of the property in the hands of the receiver. How could the chancellor know what to do with it, except by evidence, including affidavits ? It was competent to receive ex parte affidavits, whether they had been previously filed in the cause or not. Either party offering them had a right to offer, if it was in time, and as long as the chaxxcellor held the question open, it was in time. There seems to have been no error in receiving or considering the affidavits. 3. Property left iix the hands of a receiver after the bill has been dismissed for want of jurisdiction ought to be restored to whom? To the party from whom the receiver took it. That is about the least that anybody can do upon a bill that was filed without jurisdiction — to let matters go back in the state iix which they were when the unfortunate bill commenced. It would seem to make no difference that the opposite party had good claim of right to the possession. He ought to be left to litigate that thing, and not get the possession upon a bill that was entertained without jurisdiction, and that too after it has been dismissed. 4. The chancellor was warranted by the evidence, both that in the record proper and that received after the hearing was reopened, in passing the order to restore the land to the complainaxxts in the bill. The record proper is rather more decisive than the subsequent affidavits, as to the fact that the complainants were the persons from [127] whom the receiver took possession. If we go by either or both, it is almost absolutely certain that the complainants, and not the defendant, had possession at the time the receiver assumed it. The rents that accrued while the receiver was in possession ought of course to be paid to those who would have had the rents if he had not interfered and in this instance the complainants were the persons that, so far as appears, would have had them. It certainly can make no difference that the complainants are insolvent, because whether insolvent or not, they are entitled to these rents if they were the persons who would have had them in the absence of any interference by the receiver. So we see no error in what was done by the chancellor on any point in the case. Judgment affirmed.