Baird v. Cumberland & Stones River Turnpike Co.

Cooper, J., delivered the opinion of the court. The complainants, claiming to be stockholders of the Cumberland and Stones River Turnpike Company, filed this bill against the company, its president, directors, and officers, to have the rights of the complainants as stockholders declared, and to call the individual defendants to account for the incomes and profits of the road received, and alleged to have been appropriated by them to their own use. At the April term, 1878, of the Chancery Court at Lebanon, in which court the suit was pending, a Circuit Judge, sitting by interchange with the Chancellor, made an order enjoining the individual defendants from collecting, receiving, or in anywise disposing of the accruing earnings and profits of the road until further . order. During the same term, but after the defendants had answered the bill, the cause was heard by the same judge “upon the bill, answers, affidavits, and argu [395] ments of counsel,” and he, being of opinion that it was a proper ease for the purpose, appointed a receiver of the road with power to receive and collect its incomes and evidences of debt, and apply the proceeds to the repair of the road, and to the payment of the salaries of the officers. On the 11th of September, 1878, the defendants presented to this court, then sitting at Knoxville, .their petition, with a transcript of the record, asking for a recission and supersedeas of the foregoing orders, and that the receiver be required to turn over any funds in his hands to the officers of the company. Notice of the application was accepted by the complainants, and the petition has been submitted on written arguments on both sides. This court has heretofore held, in cases not reported, that an application to supersede an order made in one grand division of the State will not be entertained by the court sitting in another grand division. Strictly speaking, therefore, the action taken on the application is by the judge to whom the record has been assigned. The conclusion reached, has, however, been arrived at after consultation, and being unanimous may be considered as that of the court. The application is made under the Code, sec. 3933.. which reads thus: “The Supreme Court in term, or either of the judges in vacation, may grant writs of supersedeas to an interlocutory order or decree or execution issued thereon, as in case of a final decree.” It has been repeatedly held by the court that the statute does not confer the power to supersede an or [396] der granting an injunction or dissolving an injunction previously granted. McMinnville & Manchester R. R. Co. v. Huggins, 7 Col., 217; Mabry v. Ross, 1 Heis., 769; Redmond v. Redmond, 1 Tenn. Leg. Rep., 359. These rulings have been followed at the present term in Park v. Meek, MSS. The application, therefore, so far as it seeks to supersede, rescind or review the action of the court below in granting the injunction mentioned cannot be entertained. The cases cited go farther and hold, that under the statute the court can only suspend or supersede for the ■time the execution of such interlocutory orders and decrees as are of a nature to be actively enforced ■against a party and are in fieri, and not orders or ■decrees of a negative or prohibitory character, or such ■as have been executed. The petition in this case shows upon its face that the receiver has gone into possession under the appointment. It appears, moreover, that the defendants have been enjoined from collecting, receiving, or in anywise disposing of the accruing earnings of the road. The supersedeas cannot be granted without modifying ■ the previous ruling in relation to executed orders, and if granted, would leave the injunction in full force and would consequently be of no practical utility. The power conferred on the court by the statute is to supersede such interlocutory orders and decrees or execution issued thereon, “as in case of a final decree,” that is, such orders and decrees as it would supersede upon granting a writ of error on a final [397] decree. The orders and decrees which would be superseded by a writ of error are such as adjudicate rights, and admit of active execution. The action of the court or judge upon extraordinary process, either by fiat at chambers, or order in term, issued ’ for the preservation of rights pending litigation, is not ordinarily affected by the supersedeas of the final’ decree, on writ of error, or by appeal. Kearney v. Jackson, 1 Yer., 294; Bressler v. McCune, 56 Ill., 475. It is otherwise where the action results in the execution of a decree adjudicating rights in advance of a final hearing. Payne v. Johnson, 1 Tenn. Leg. Rep., 363; Forgay v. Conrad, 6 How., 201; Railroad Co. v. Bradley, 7 Wal., 575. The appointment of a receiver is ordinarily. in the nature of extraordinary process, for it neither settles nor prejudices rights, and is only resorted to" for the purpose of preserving the property in controversy pending the litigation fo'l the benefit of the successful party. Forgay v. Conrad, 6 How., 204. Such an appointment, in a case clearly • within the competency of the court, can no more be superseded than the fiat or order of the court directing the issuance of extraordinary process for the same end. 1 It might be otherwise if the appointment was not within the competency of the court, as where the contest is over the legal title to land, or does not extend to the rents, for then it would affect possession, which is itself a right. Richmond v. Yates, 3 Baxter, 204; Morford v. Hamner, 3 Baxter, 391; State v. Allen, 1 Tenn. Ch., 512. The distinction is between the want [398] of power and the discretionary exercise of conceded power. In the latter case, and where the action of the court is merely preservative of rights, the section of the Code under consideration has no application.