Harwell v. Potts

80 Ala. 70

• Court: Supreme Court of Alabama
• Decided: December 15, 1885
• Status: Published

Opinion

CLOPTON, J.

The order appointing the receiver, from which the appeal is taken, was made December 26, 1885, by the chancellor in vacation, and the bill was filed on the 28th, two days thereafter. As receivers are, ordinarily, appointed without requiring a bond from the party applying for such appointment, the courts have generally realized the necessity and duty of exercising great caution and circumspection. The bill is defective in some material respects. Whilst averring the conclusion of fraud, it does not sufficiently allege the facts, from which the conclusion arises, either by assailing the bona fides of the indebtedness secured by the mortgages, or otherwise ; and does not charge, that the grantees had notice of the fraudulent intent imputed to the grantor. As these defects may be cured by amendment we do not propose to consider on this appeal, whether the case made by the bill, if it were properly amended, would be-sufficient to require or justify the appointment of a receiver. Such consideration will be premature, until the bill is perfected, and the parties have had an opportunity of being heard.

The statute confers on the chancellor the power to appoint receivers. The application must be in writing; and when made in vacation, reasonable notice,of the time, and the person to whom it will be submitted, must be given, or a good reason shown for the failure to give the same. Code, § 3881. Without discussing whether the facts stated in the bill, which was verified, show a sufficient reason for tlie failure to give notice, the question being now immaterial, it is evident that the power to, appoint receivers in vacation can only be exercised in a pending suit. The filing of the bill is the commencement of the suit. Code, § 3759. There was no suit pending at the time the order appointing the receiver was made; and the chancellor was without jurisdiction. The direct question was decided adversely to the power of the chancellor in Crowder v. Moore, 52 Ala., 220; Ex parte Whitfield. 2 Atk. 315; High on Recs., §. 17. It is urged, however, that as the order was made, and the receiver qualified by giving the requisite bond on the day the bill was filed, the order should be allowed to have effect as of that date. As the chancellor was without jurisdiction, the order is void. It did not constitute a foundation on which to predicate any proceedings, and the subsequent filing of the bill did not impart to it any effect or validity.

Reversed and remanded.