Brown v. Gary

Waterman, P. J. As the case stood when this order was made, the Superior Court had lost control over the fund which it had once had in its custody. Barnes, Gary, and the appellant Brown, had each been before the court asserting a right to all or some portion of the fund. In some way, as was asserted, without the consent of any of the parties, the Maguire note and mortgage had been surrendered, and the money received thereon had been paid into a court of the State of Michigan. It appeared that after disposing of the principal portion of the fund, the Michigan court had held the remainder with a view to ordering it paid as the Superior Court of Cook County might determine the rights of the parties to be; but all power of the Superior Court to enforce any order it might make as to a final disposition of the fund, was gone; the Circuit Court of Tuscola County in the State of Michigan, might or might not abide by the conclusions of the Superior Court of Cook County, State of Illinois. All parties had so submitted themselves to the jurisdiction of the Circuit Court of Tuscola County, that it had power to make a final determination of their rights to, and finally dispose of, the fund. To be sure, it had not done so, perhaps out of courtesy, and perhaps because it had not been asked; but its power in the premises was undoubted and undisputed. The Superior Court, therefore, very properly felt that if it was to go on and adjudicate as to the right of the respective claimants of this fund, it ought to be placed in a position where it could enforce its judgment and not merely be able to advise a foreign tribunal. The Circuit Court of Tuscola County was evidently willing that the final determination as 'to this fund should be made by the Superior Court of Cook County, and the latter tribunal rightfully thought that the parties before it, claiming this fund, ought, as they were each asking its aid, to be willing to put the subject-matter of the litigation into its hands; place the Superior Court in a position where its decree coidd be enforced, and not ask it to merely sit for the purpose of giving advice which might or might not be followed. To this end it, therefore, required that each of the parties should stipulate that the fund might be taken from the Circuit Court of Tuscola County in the • State of Michigan and placed in the hands of the receiver of the Superior Court. It is urged that the appellant Brown properly declined to join in such stipulation, because it was thereby sought to get the fund into the hands of a person hostile to his interests. This objection proceeds upon an entirely erroneous view of tlie position occupied by a receiver. A receiver is neither hostile nor friendly to any party to the cause in which he is appointed. lie is but the arm, the steward of the court; his possession is its possession, and it is a gross and shameful abuse of his trust for him to make use of his place for one party at the expense of another. His duty is to protect the fund against all and to distribute it as ordered by the court. In its division among the parties he has, and can properly have,no possible interest. Had the fund or what remained of it again come into the hands of the receiver’, he would have held it for appellant as much as for Gary or Barnes, -and would have been instantly removed had he been found to be using his position to assist them in their litigation with appellant. The stipulation could do no harm to appellant unless he had in mind to keep the fund out of the control of the Superior Court, and if its judgment should be against him, then apply to the court in Michigan to, notwithstanding such judgment, retain the fund and distribute it as it deemed best; thus giving to appellant an opportunity to litigate the matter over in Michigan after he had been defeated in Illinois. It is urged that the Austins, the judgment debtors, could not have recovered against Gary, the garnishee, and that therefore Barnes, the judgment creditor, can not. No such question is involved in this appeal. The- order dismissing appellant’s interpleader was not an adjudication of the right of Barnes to the fund; it was merely a decision by the court that it would not hear a claimant who refused to permit the fund to be restored to the custody of the court so that it might have power to enforce its judgment. Nor did the order determine as to the validity of the assignment to appellant or as to the rights he acquired under it, or as to the standing of the judgment upon which the garnishee proceedings were based. Any and all questions arising in the case under the pleas and interpleader of appellant would have remained had he joined in the stipulation; indeed, the stipulation itself recites that the money is to be paid into the hands of the receiver without prejudice to the rights of any of the parties. There can ho no question as to the power of the court to make the order. Gary v. Brown, 33 Ill. App. 435; The Republic of Liberia v. Roye, 1 App. Cases, 139. The order of the Superior Court is affirmed. Order affirmed.