838 GALLOWAY V. LECROY. [169 GALLOWAY V. LECROY.' 1'7 . , • -. • Opin•dn'deliered I\iovember 16-1925. 1. REcvyEAs—JuitIsDICTIoN; OF, PERSON.—In , a proceedi•g rto , ¶re-. , move a receiver, as , having ,been.appointed before jurisdiction rof the Person of petitioner 12■tas acquired, the irregularity Of making the apPointment pmatiirelY Was an irregularitY merelY ,which es . C ' ured bY the cOurt'a" subieqiient 'acqUisitiori of jiadietion. 2. PROHIBITION—DISCatTION TO AWARD reinedY by prohibition ' is discretionary with the coUrt, 'and. a petitioner will be ; denied relief -where he waited ari unreasonable length: of time without excuse before seeking , the writ. , Prohibition Odachita Chancery ' Court, Second Division; Geoige M. LeCroy, Chanoeller; Writ denied: C. L. BaSs and Poieell; &mead . •& Kiax*, 6Petitioner. Ha „ y nie, Paiks . W „ e stfall, for respondent., fMCCU.LLocH, C. J. ..The petitioner; J. , 0.. Galloway, seels to, obtain, from this court a , writ of prohibition restraining, resp'opdent as chancellor 'of the' Seeond Division of the ;Seventh Chancery . Circuit, from proceeding further in cause pending in the Union , Chancery:Court for the-removal of petitioner as trUstee 'of a certain estate and the ;appointment of a reCeiver to . manage and control the • 'estate. , The •jurisdiction of the . eliancery-court 'is challenged in the petition; and the (chancellor .has , re-:spondedi the substance of the record being agreed : upon. ,. It nppears from the record that , priof to August 23, 1923, petitioner was the trustee of a certain estate em-. bracing:oil interests in Union County, Arkansa g , the business of the estate being:conducted 'under the name of the,j. '0. Galloway Oil Interests, 'and there were numer-.ous units 'of interest represented by certificates,:issued to- purchase.' The nature 'of' the trustis not sef forth in detail in the record, an,d it iS left Merely to inference as. to what the provisions were.' On the' date:mentioned above, j. E. Straughah, representing •imSelf and all other unit holders in the trust estate, 'filed a complaint in the chancery court of Union County alleging that J. b. Galloway, as trustee, was incapacitated from
ARK.']! GALLOWAY V. LECROY. 839 futher management of the trust, and asking, that he be removed and receiVers be, appointed to manage and con-- crol the estate and . vi:ind it, up for the benefit Of the unit holders. The' chancellor appointed two receivers, A. Meek and .J.. D.: ReYnolds, and , they , qualified,. gave bond. and assumed control of the- estate. Shortly thereafter, the plaintiff or petitioner . in that . proceeding; J. .E: Straughari, amended his . Complaint by setting forth the:: fact that Galloway was a non-resident : of the 'State.,'and'. filed, an affidavit for warning order, which. was 'duly-issued and published, and 'upon proof of pnblication the court re-affirmed or ratified its former order appointing the receivers, and, Reynolds having resigned, Meek was retained as sole receiver and continued to manage the trust estate.. • ' On September.17, 192 . :1, petitioner herein, J. , O. Gallo-way, appeared in the proceedings in the chancery court of UniOn CountY arid filed his answer or other plea seek-ingto , haVe the redeiVer diSCharged and the proceedings disMissed. ,'HiS plea yas.overruled, and nothing ftirther has been done, in rthat: proceeding, so far as we are adviSed:.by the record now before us, except that the proceeding:is Still pendirig below and that the truSt estate is still under the Manageinent of the-receiver. The validity of the prOceedings and the . juriSdiction of the court are assailed on the ground that the, proceedings were not of an adversary character, there being no 'defendant named, and that the issuance and publica,- tion of the .warning order was not sufficient to constitute due . procdss arid confer jurisdiction on the court over the person Of petitioner herein. The trust estate being situated within the territorial jnrisdiction of the chan-, eery court, , and the petitioner herein having voluntarily appeared in the. court below,, the jurisdiction 'of the 'sub-jectImatter 'and of the person of the petitioner WaS- complete.' It.is unnecessary to discuss the effect of the pnbli-cation of the -warning order. The premature appointment Ok a, receiver, if indeed the appointment was premature, was a mere irregularity: which has been cured by-the
subsequent. acquisition of jurisdiction over the persons of the. interested parties. At any rate, a mere irregularity in the appointment would have to be corrected by appeal. Moreover, the remedy by prohibition is subject to the discretion of the court, and the petitioner has barred himself from that remedy by waiting an unreasonable length of time, without excuse, after he made himself a party to the proceedings below. W eaver v. Leatherman, 66 Ark. 211. No grounds are shown for the. exercise:of:the extraordinary remedy of prohibition, and the prayer of the petition is therefore denied.
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