In re Platt , 41 Jones & S. 513 ( 1877 )

Freedman, J.

— This court having undertaken to determine who is the proper party to distribute the estate assigned pursuant to the laws of this state by the debtors for the benefit of their creditors, and having, by its receiver, possession of the fund, and thus full jurisdiction over it, it is perfectly competent to decide all questions relating to its distribution. As a general rule, leave will not be granted by this court to sue a receiver, appointed by its authority, in any other tribunal. It is only when special facts and circumstances are shown to exist which render a departure from the regular course and practice of the court advisable that such leave is given.

But in the present case I fail to perceive that such special facts and circumstances exist; on the contrary, strong reasons have been advanced why such leave should be withheld.

Assignments like the one in question have been held by the highest court in this state to be perfectly valid and unassailable under the bankruptcy act, while the federal courts in this district have reached a different conclusion. The power "to review these decisions, which is vested in the supreme court of the United States, does not abate the authority of the court of last resort in this state over its inferior tribunals, and hence, until the conflict is finally determined by the supreme court of the United States, I must abide by the law as settled in this state. This being so, this court should not grant leave to have its own officer sued in a tribunal which is known to administer the law in a different way from that which this court is bound to observe, and whose jurisdiction is invoked for the purpose of nullifying the conclusions at which this court has arrived.

Nor does the use which the assignee in bankruptcy made of this ex parte order granting such leave, entitle him to favorable consideration, for he did not sue the receiver as an officer lawfully appointed by this court, and having the lawful custody of the fund, but as an individual having in his possession certain property, the title to which is alleged to be in such assignee. If that was the true condition of affairs, the leave of this court was wholly unnecessary.

The order heretofore granted ex pa/rte should be vacated and set aside, but the assignee in bankruptcy may have leave to bring such action in this court as he may be advised.