Crowder v. Moone

52 Ala. 220

• Court: Supreme Court of Alabama
• Decided: January 15, 1875
• Status: Published

Opinion

JUDGE, J.

The order appointing a receiver in this case was made in vacation, and one day before the bill was filed. The order was made on the sixteenth day of January, 1874, and the bill was filed on the next day thereafter.

A suit in chancery is not commenced until the filing of the bill; thiis it appears that this suit was not pending when the order appointing a receiver was made. Rev. Code, section 3382.

We hold that the general power of the court of chancery to appoint a receiver, requires a suit to be pending; and such seems to be the rule in England save in extreme cases. Edwards on Receivers, p. 13.

But another and a fatal objection exists to the order in this case; it was made without previous notice to the necessary and interested parties. As a general rule such notice is necessary; but the rule is subject to exceptions in special cases where irreparable injury would be sustained by the delay. In the present case it was not shown that special circumstances existed which rendered it necessary or- proper to put a receiver upon the property of appellants without giving them an opportunity to be heard. The People v. Norton, et al. 1 Paige, 17; Sanford v. Sinclair, 8 Paige, 372. The record informs us that two of the appellants, Crowder and Newman, who are interested, with the appellee, in the property involved in the litigation, reside in Madison county where the bill was filed; and there is nothing in the record to show that they could not have been readily notified of the application.

We do not deem it necessary to discuss the question as to whether the case is a proper one for the appointment of a receiver, or if it is, whether the ex parte showing made is sufficient to authorize it.

The order of the chancellor must be revoked and annulled, and the cause remanded.

Brickell, C. J., having been of counsel, did not sit in this case.