Dreyspring v. Loeb

113 Ala. 263

• Court: Supreme Court of Alabama
• Decided: November 15, 1896
• Status: Published

Opinion

BRICKELL, C. J.

The act of the General Assembly, approved February 18th, 1895, declares, the chancellor, judge, or register, to whom an application is made for the appointment of a receiver, before making such appointment, “must require the complainant to enter into bond in a sum as such chancellor, judge, or register may prescribe, payable to, and with good and sufficient sureties, to be approved by the register of the court in which the suit is pending, with condition to pay all damages which any person may sustain by the appointment of the receiver, if such appointment is vacated.” It is further declared, that any person injured by the appointment, may sue on the bond, in his own name, for the recovery of damages suffered from the appointment.— Pamph. Acts, 1893-94, p. 585.

The statute is mandatory and prohibitory; without compliance with its requirements, there can not be a valid appointment of a receiver.-Capital City Water Company v. Weatherly, 108 Ala. 412. True, it does not appear affirmatively, that the defendants objected on this particular ground to the appointment of the receiver. The objection need not appear affirmatively; the court was proceeding against them in invitum, and there can be no intendment or presumption that they yielded assent to the irregular action of the court, violative of the plain mandate of the statute.

The decree appointing the receiver must be reversed and vacated, and the cause remanded to the city court.

Reversed and remanded.