
    11077
    
      EX-PARTE PLANTERS’ BANK, PETITIONER KING HARDWARE CO. v. McGILL ET AL.
    
    (115 S. E., 299)
    1. Partnership — Court Has Discretion to Appoint Receiver for Insolvent Firm. — Upon a showing that a defendant partnership was insolvent, the Court has discretion to appoint a receiver for the firm, when the facts and circumstances show that the ends of justice would be served thereby.
    2. Partnership — Appointment of Receiver for Insolvent Firm Held not Abuse of Discretion. — Where the members of an insolvent partnership consented to the appointment of a receiver as prayed by a creditor, and there was no showing of any facts making it not for the best interest of all creditors, and no statutory authority forbidding the appointment, it was not an abuse of discretion to make the appointment or.to refuse to vacate it.
    3. Partnership — Creditor of Insolvent Firm Cannot Object to Appointment of Receiver. — The creditor of an insolvent firm has no right affected by the appointment of a receiver, under circumstances giving the Court discretion to make such appointment, entitling him to have the appointment vacated, where the objecting creditor is deprived of no right or remedy, since he will not be allowed to override the wishes of a majority of the other creditors.
    4. Partnership — Suits Against Partners Cannot be Enjoined Where Receivership Extended Only to Firm. — Where a receiver was appointed for an insolvent firm, but none was appointed for the individual property of the members of the firm, and the complaint did not ask a receivership for that purpose, an injunction against suits against the firm or the members must be modified so as not to forbid suing the individual members.
    Before Sease, J., York, August, 1922.
    Modified.
    Action by the King Hardware Company against J. M. McGill and others, copartners under the name and style of J. N. McGill’s Sons Company, in which a receiver was appointed for the defendant firm. From an order refusing a motion of Planters’ Bank to vacate the appointment of the receiver and the injunction against suits by creditors, the petitioner appeals. Modified.
    
      
      Mr. W. W. Lewis, for petitioner, appellant
    cites: Receivership for partnership: Code Proc. 1912, Sec., 303; 27 S. C., 416; 80 S. C., 89; 23 R. C. R., 9, 15, 16, 18; 72 A. R. R., 30. When not appointed: 72 A. R. R., 29, 32.; 23 R. C. R., 12. Bven when parties consent: 72 A. R. R., 29; 23 R. C. R., 12. Unprofitable business not ground for receivership: N. J. Eq., 207; 74 Ind., 71. Cannot carry on business: 63 Am, Dec., 198; 7 N. J. Eq., 605. Remedy should be granted with caution: 84 S. C., 220. Meaning of “discretion”: 9 A. & E. Ene. R. (2d Ed.), 473; 47 S. C., 498.
    
      Messrs. Thos. P. McDow, John R. Hart and John A. Marion, for plaintiff, the receivers and creditors.
    
      Mr. J. S. Brice for defendants.
    December 29, 1922.
   The opinion of the Court was delivered by

Mr. Justice Watts.

“On the 9th day of May, 1922, the plaintiff above named commenced its action in the Court of Common Pleas for York County against the defendants above named. The defendants answered the same day. On the same day application was made to his Honor, Judge Ernest Moore, at his chambers at Rancaster, S. C., for an order appointing a receiver for the property of the defendants and an injunction against all creditors of said defendants from entering suit against said defendants, or otherwise prosecuting their claims against said defendants than through the receivership action. Upon the verified complaint and answer, his Honor, Judge Moore, passed the order hereinafter set out. The receivers therein appointed .duly qualified, gave bond and entered upo.n the discharge of their duties.

“On July 31, 1922, petitioner served a notice upon respondent’s counsel that, upon the verified petition - hereinafter set out, petitioner would move his Honor, Judge Sease, at his chambers at Spartanburg, S. C. (there being no resident or other Judge in the Sixth Circuit at the time), to vacate and set aside said order appointing receivers and enjoining creditors. Said hearing was had before his Honor, Judge Sease, who, on August 26, 1922, passed an order refusing the motion of petitioner. Said order has never been served on petitioner nor its counsel, but on the 4th day of September, 1922, petitioner by counsel served notice on respondent’s counsel of petitioner’s intention to appeal to the Supreme Court from the order of his Honor, Judge Sease.” From the order of Judge Sease appellant appeals, and by twelve exceptions imputes error. The issues raised by exceptions and for this Court’s'decision are: (1) Was Judge Moore right in passing the order appointing receivers? (2) Has the appellant any right now to attack this order?

Upon the showing before Judge Moore, the concern of J. N. McGill’s Sons Company were practically, at that' time, insolvent under Akers v. Rowan, 33 S. C., 451; 12 S. E., 165; 10 L. R. A., 705, and under the facts and circumstances, as appearing before him at that time, and if it appeared within the sound discretion of the Court that a receiver should be. appointed, then he had a perfect right to do so. As it is the inherent right of the Court to- appoint a receiver in each particular case, when the facts and circumstances show that the ends of justice would be served, the Court, under such circumstances, has the right to exercise its .sound legal discretion.

The defendants consented to the appointment. All the facts and circumstances show that the appointment was proper, and no authority has been cited, showing that it was forbidden by any statute. We see no abuse of discretion on Judge Moore’s part in appointing receivers; it was for the best interests of all, the creditors and the defendants.

No right of petitioner has been affected. Petitioner’s right is that of other creditors, and petitioner will not be allowed to override the wishes of a majority of the other creditors, as it is deprived of no right or remedy, as it can get every right in the present case.

The receivership should stand, but Judge Moore’s order should be modified as to the injunction, forbidding the suing of the individual members of the firm, as no receivership was appointed for the individual property of the members of the firm, and as the complaint did not ask for a receivership for that purpose.

Order appealed from modified.  