Prentiss Tool & Supply Co. v. Whitman & Barnes Manufacturing Co.

Briscoe, J., delivered the opinion of the Court. The question in this case is a narrow one, and is presented upon certain exceptions filed by the creditors of the Surbridge Manufacturing Company of Washington County to the auditor’s second report distributing the proceeds of a receiver’s sale of personal property, which had been levied on under a H. fa. issued on a judgment held by the Whitman and Barnes Manufacturing Company, the appellee. There were several exceptions to the account, but this appeal is from the order ratifying the auditor’s account No. 2 in so far as it sustains the distribution of ²⁴² the fund to the appellee in part payment of its judgment, filed in the case. The facts of the case briefly stated are these: On the 9th of February, 1894, a creditor’s bill was filed in the Circuit Court for Washington County to wind up the affairs of the Surbridge Manufacturing Company of that county, through the hands of a receiver, and at 1 o’clock P. M. on the 19th of the same month and year, F. W. Mish was appointed receiver with power and authority to take charge and possession of its property and éffects.

His bond was. filed and approved on the same day. On the 12th of February, 1894, the appellee obtained a judgment in the-Circuit Court for Washington County against the Surbridge Manufacturing Company, and on the 19th day of February, 1894, a ñ. fa. was issued upon a petition and order of Court, provided by a local law of Washington County, Act of 1886, chap. 264. It further appears by an agreement of counsel filed in the case that this execution was laid in the hands of the sheriff about 11.30 A. M. on February 19th, 1894, and the levy on the personal property was made by the sheriff at twenty minutes after 2 P. M. on the same day. While the receiver did not take actual possession of the property until after the making of the levy, the sale was made by him in pursuance of an agreement which reserved whatever lien the appellee may have acquired by virtue of the levy.

The real controversy, then, is over the title to the property sold by the receiver and the disposition of the fund arising from the sale, and this, we think, is settled by the fact that the receiver was not appointed until sometime after the fi. fa. was placed in the