Miller v. Lehman, Durr & Co.

87 Ala. 517

• Court: Supreme Court of Alabama
• Decided: December 15, 1888
• Status: Published

Opinion

SOMERVILLE, J.

The motion to dismiss the bill for want of equity clearly had no merit, and was properly overruled. The bill distinctly alleges the existence of a debt due by the defendant, C. L. Miller, to the complainants, and its amount, with the consideration upon which it is based. It further avers the insolvency of said Miller, and the transfer by him of a stock of goods, and other property, to his co-defendants, who are his brothers, and that this transfer was made without any valuable consideration, or on a mere simulated consideration, in secret trust for the benefit of the grantor, and with intent to hinder, delay and defraud the complainants, and other creditors of the grantor; and that the grantees in this conveyance knew of the fraudulent motives of the grantor in making the transfer. This was manifestly sufficient in every particular, and fully justified the prayer of the bill.

The other assignments of error are based on the refusal of the chancellor to sustain the motion of the defendants to vacate the order appointing a receiver in the cause. A motion is made in this court to strike these assignments from the record, as unauthorized in the present status of the cause. This motion must, in our judgment, be sustained. The receiver was appointed by the register in chancery, under the authority conferred on him by the statute. If the defendants were dissatisfied with the appointment, they had the right -to appeal from the action of the register, to the chancellor, and have it reviewed before him; and, in the meanwhile, to have the order suspended, upon giving bond with sufficient sureties. — -Code, 1886, § 8585. And if the chancellor confirmed the appointment, an appeal would lie to this court, within thirty days from the filing of the order with the register, to be tried as a preferred case, and as an appeal specially authorized by statute from an interlocutory order. — Code, § 3614. By neglecting to pursue this course, the defendants waived their right to review, in the mode now attempted, the regularity and propriety of the appointment, under color of a motion to vacate the order. The rule is well settled, that the appointment and removal of receivers are matters which rest in the discretion of the Chancery Court; and the appellate court will not, on appeal, undertake to review or control the exercise of this discretionary power, except so far as it may be authorized to do so by statute. And the statutes of this State give no right of appeal from the refusal of a court of chancery to vacate an order appointing a receiver, which, as we have said, is purely interlocutory in its nature.—Beach on Receivers, § 781; Connolly v. Kretz, 78 N. Y. 620; Seney v. New York Stage Co., 28 How. Prac. 481; Mansony v. U. S. Bank, 4 Ala. 735; Kerr on Receivers, 139-140, note 1; Code, 1886, §§ 3611, et seq.

The motion to strike is sustained, and the judgment affirmed.