
    HALL v. WAYNE CIRCUIT JUDGE.
    1. Receivers—Divestiture of Possession—Ex Parte Order. An order appointing a receiver pendente lite, and requiring property in the possession of mortgagees to be turned over to him, issued in a proceeding under 3 How. Stat. § 8749o, relating to voluntary assignments, and authorizing persons having preferred claims to apply for a receiver in certain cases, attempts to divest possession on a preliminary inquiry, and is therefore improvident, if not an absolute nullity.
    
      % Same—Mandamus.
    Such order being appealable, mandamus will not lie to set it aside.
    
      Mandamus by Thomas E. Hall and others, to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order appointing a receiver.
    Submitted October 20, 1896.
    Denied January 5, 1897.
    
      Julian G. Dickinson, for relators.
    
      Harry F. Chipman, for respondent.
   Hooker, J.

The circuit court in chancery made an order appointing a receiver, and requiring defendants to deliver over to said receiver all property constituting a stock of dry goods owned by Richardson and others, which was in the possession of other defendants as mortgagees. The bill was filed under 3 How. Stat. § 8749o, and the order was made pendente lite. A motion was made to vacate said order, which was denied,' and an application for mandamus to compel it is made.

This order attempts to divest possession of property on a preliminary inquiry, and, if not an absolute nullity, was improvidently made. Port Huron, etc., R. Co. v. St. Clair Circuit Judge, 31 Mich. 456; People v. Simonson, 10 Mich. 335; Barry v. Briggs, 22 Mich, 201; Sailing v. Johnson, 25 Mich. 489; People v. Jones, 33 Mich. 303; McCombs v. Merryhew, 40 Mich. 725; Tawas, etc., R. Co. v. Iosco Circuit Judge, 44 Mich. 481; Jones v. Schall, 45 Mich. 380.

But, as shown by most of the cases cited, and many others that might be cited, the order is appealable, and mandamus should not be resorted to in such cases, as we have repeatedly held. The case of Scott v. Wayne Circuit Judges, 58 Mich. 314, is in point. We must, therefore, deny the writ, but we have no doubt that the circuit judge will vacate the order upon a renewal of the application, and upon being advised of the view taken by this court. Neither party will be allowed costs.

The other Justices concurred.  