Thompson v. Tower Manufacturing Co.

87 Ala. 733

Opinion

STONE, C. J. —

In the absence of an averment that Mrs. C. A. Thompson was and is unable to respond to the recovery complainants allege they are entitled to, the order appointing the receiver in this case must be reversed, on the authority of Moritz & Weil v. Miller, Schram & Co., at the present term, ante, p. 336. This order is made without prejudice to the right of the complainants to renew the application, on proper notice and proofs, as they may be advised. It should be a strong case of emergency and peril, well fortified by affidavits, to authorize the appointment of a receiver without notice to the other party. — Hughes v. Hatchett, 55 Ala. 631; Brierfield Iron Works v. Foster, 54 Ala. 622. In Weiss v. Goetter, 72 Ala. 259, notice of the application had been given, and affidavits were produced on both sides.

If it had been shown that Mrs. Thompson was insolvent, we will not say what would have been our ruling; for the bill avers that she is endeavoring to dispose of the goods. The averments of the bill, if made good, show a flagitious case of fraud. —Tryon v. Flournoy, 80 Ala. 321.

Decretal order appointing receiver reversed, and cause remanded.