Ashurst v. Lehman
| Decision Date | 02 March 1889 |
| Citation | 86 Ala. 370,5 So. 731 |
| Parties | ASHURST ET AL. v. LEHMAN ET AL. |
| Court | Alabama Supreme Court |
Appeal from chancery court, Tallapoosa county: S. K. MCSPADDEN Judge.
Bill by Lehman, Durr & Co. against R. T. Ashurst and others. Defendants appeal.
Watts & Son and John A. Terrell, for appellants.
It has been said that the exercise of the power to appoint a receiver pendente lite is one of the most responsible duties which a court of equity is called on to perform, as its effect is to deprive the defendant of his possession before a final decree, which may work great and even irreparable injury, though the property taken into the custody of the court may be finally restored. The appointment rests largely in the discretion of the court, not an arbitrary or capricious, but a judicial, discretion controlled by a consideration of the circumstances of each case, and the power should be exercised with great caution and circumspection. Actual fraud or imminent danger is not in all cases, essential to the exercise of the power. There should, however, be a concurrence of two grounds,-a reasonable probability of success on the part of the complainant, and that the subject-matter in controversy is in danger. The remedy is preventive in its nature, and its purpose is the preservation of the subject-matter of litigation for the benefit of all the parties in interest, until their rights can be finally adjudicated. It does not affect the title, nor establish the rights of the parties. Such being the nature of the remedy, the appointment of a receiver is authorized when the party seeking the appointment shows, prima facie, a title reasonably free from doubt, or a lien upon the subject-matter of controversy to which he has a right to resort for the satisfaction of his claim, and that it is in danger of loss from waste, misconduct, or insolvency, if the defendant is permitted to retain the possession. Notice of the application for the appointment, and the officer to whom it will be submitted, must be given, or a good reason shown for the failure to give the same. Iron-Works Co. v. Foster, 54 Ala. 622; Micou v. Moses, 72 Ala. 439; Bard v. Bingham, 54 Ala. 463; Ex parte Walker, 25 Ala. 81; Code 1886, § 3534.
The allegations of the bill, which are verified, are not controverted. We must, therefore, on appeal, assume their truth. The relation of mortgagees and mortgagor exists between complainants and defendant...
To continue reading
Request your trial
-
Pullis v. Pullis Brothers Iron Company
... ... Merriam v. Railroad, 136 Mo. 145; Smith on ... Receiverships, pp. 43 and 552, note 2; O'Mahoney v ... Belmont, 62 N.Y. 143; Ashurst v. Lehman, 86 ... Ala. 370. A receiver should not be appointed pending a suit ... to determine the title to the property claimed by defendant, ... ...
-
Henry v. Ide
... ... They were before this court and ... some of them were discussed on former appeal. However, it ... should be said that Ashurst v. Lehman, Durr & Co., ... 86 Ala. 370, 371, 5 So. 731, was a bill for the foreclosure ... of a mortgage, and the appointment of a receiver was ... ...
-
Martin Oil Co., Inc. v. Clokey
...at 641, 108 So.2d at 690) In the instant case, there is no allegation that either of the appellants is insolvent. In Ashurst v. Lehman, Durr & Co., 86 Ala. 370, 5 So. 731, a bill was filed December 15, 1888, against appellants and sought foreclosure of a mortgage executed by appellants conv......
-
C. E. Development Co. v. Kitchens
...of the bill, which are verified, are not controverted. We must, therefore, on appeal, assume their truth.' Ashurst v. Lehman, Durr & Co., 86 Ala. 370, 371, 5 So. 731. "The appointment of a receiver rests in the sound discretion of the trial judge, subject to review for an abuse of that disc......