finding the Barton requirement met and reversing a lower court’s order dismissing the matter
How later courts described this case
- finding the Barton requirement met and reversing a lower court’s order dismissing the matter
- holding "court of competent jurisdiction” includes federal courts
Written by the judges who cited it.
The opinion
McDOWEEE, District Judge
(dissenting). I am unable to concur in the conclusion of the majority of the court.
As to 169 of the bales: Under the pleadings and agreed facts, the contract under which plaintiff in error claimed the right of possession is void, under section 2655 of the Civil Code of 1902 of South Carolina for want of registry, as to some of the creditors represented by the receiver. This defense is one that was properly made by the receiver. Bayne v. Brewer, 90 Fed. 754 ; 3 Cook, Corp. (5th Ed.) § 869, and notes; 20 Amer. & Eng. Ency. (1st Ed.) pp. 252-3. This fact clearly made it the duty of the trial court to decide that the plaintiff in error, plaintiff below, did not have the right to the possession of 169 of the bales sued for, or to remit the controversy to the court which appointed the receiver.
As to the remaining 20 bales: If the contract as to these bales was not shown by the agreed facts to be void for want of registry— and such is my conclusion — still the facts in evidence showed a probable, and certainly possible, right in the receiver to the proceeds of sale of the 20 bales over and above the bank debt assigned to plaintiff in error secured by pledge of these bales. A strict legal right of possession in plaintiff in error may have been shown. Yet both comity and the duty of avoiding injustice required that the trial court should not take advantage of the ex parte order of the court which appointed the receiver, but should in effect remit the controversy to the court which could protect the rights of every one concerned.
The order entered by the trial court accomplishes this result, and it cannot estop plaintiff in error from asserting in the court of the receivership every substantial right to which it is entitled. The rights of plaintiff in error as a creditor of the mill company having unsatisfied money demands, and its rights as to priority of payment out of the proceeds of sale of any of the sheeting in question, have not been adjudicated. On the face of the judgment, nothing was adjudicated except the mere right of possession.