Petchey v. Allendale Land Co.

112 So. 818, 216 Ala. 167, 1927 Ala. LEXIS 76

• Court: Supreme Court of Alabama
• Decided: May 12, 1927
• Docket: 6 Div. 845.
• Status: Published

Opinion

SAYRE, J.

Appeal from an order appointing a receiver. Appellee moves a dismissal of the appeal on the ground, inclusive in a general way óf all others, that the ends of the receivership have been accomplished and the propriety of the appointment is now a moot question. The appeal was taken in accordance with the statute; appellant executing a bond for costs only. There was no supersedeas. The authority of the receiver was not suspended, and it is now made to appear to the court that, after the appeal had been perfected as stated above, the receiver filed a report showing that the personal property which had come into his hands in virtue of his appointment had been disposed of, and that, on the day before the submission of the cause in this court, the receiver had filed his final report in the court, from which the order of appointment emanated. The motion to dismiss must be denied. The appeal must be considered in order to a determination of the propriety of the order appointing the receiver -with whatever consequences to the parties and to the receiver and their bondsmen such determination may involve.

The order appointing the receiver appears to have been made on the affidavit of' one Adler, to whose rights in the premises the Allendale Land Company, appellee, had succeeded by assignment, and was made without notice to appellant. The controversy between the parties involves the control of a pig farm under lease to defendant (appellant) and the possession of a number of pigs and some farm truck, viz, some bushels of corn and greens and collards in the field. The affidavit appended to the bill is not satisfactory ; it is not such an affidavit as the law requires" in its place. It is that—

“He (affiant) is informed and believes that the facts set out in the foregoing bill of complaint are true and correct as stated therein.”

Properly construed against the pleader, the affidavit means no more than that affiant believes the averments of the bill to be true, though he may have neither information nor knowledge of their truth. Burgess v. Martin, 111 Ala. 657, 20 So. 506, and cases cited; Smith-Dimmick Co. v. Teague, 119 Ala. 390, 24 So. 4.

Nor is the insolvency of defendant, an important averment in the case sought to be made by the bill, averred with that definition and certainty required in such cases. Warren v. Pitts, 114 Ala. 68, 21 So. 494. The alternative averment would indicate that complainant was in doubt as to the fact.

It was within the discretion of the trial judge to appoint a receiver without notice; but “it should be a strong case of emergency and peril, well fortified by affidavits,” to authorize such appointment. Thompson v. Tower Mfg. Co., 87 Ala. 733, 6 So. 928; Henry v. Ide, 209 Ala. 367, 96 So. 698.

Our judgment is that the averments and proofs shown by the record did not warrant the appointment of the receiver without notice to the adverse party. Accordingly, the decree will be reversed, and the cause remanded; to the end that the receiver may account to the court and a proper decree render disposing of the receivership.

Reversed and remanded.

GARDNER, BOULDIN, and BROWN, JJ., concur.