Bell v. Goodwin

• Decision Date: 21 November 1929
• Docket Number: 6 Div. 481.
• Citation: 220 Ala. 537,126 So. 108
• Parties: BELL ET AL. v. GOODWIN ET AL.
• Court: Alabama Supreme Court

126 So. 108

220 Ala. 537

BELL ET AL. v. GOODWIN ET AL.

6 Div. 481.

Supreme Court of Alabama

November 21, 1929

Rehearing Denied Jan. 28, 1930.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Creditors' bill by C. A. Goodwin and another, doing business as C. A Goodwin & Co., against Clemmie L. Bell and others. From a decree appointing a receiver, respondents appeal. Affirmed.

See also Ex parte Wilkinson (Ala. Sup.) 126 So. 102.

W. B Harrison, of Birmingham, for appellants.

Street Bradford & Street, of Guntersville, and A. Leo Oberdorfer, of Birmingham, for appellees.

BOULDIN J.

In Ex parte Horace C. Wilkinson, 126 So. 102 submitted, considered and decided in connection with this cause, we dealt with the question of jurisdiction and the validity of the order appointing the receiver on collateral attack.

This is an appeal from the decree appointing the receiver, and involves the propriety of such appointment.

Errors are assigned only on behalf of Mrs. Clemmie L. Bell and Louise Snow Bell, wife and daughter of A. W. Bell, deceased.

We need consider only questions of concern to them as respondents in the cause.

Some questions urged on this appeal were decided in Ex parte Horace C. Wilkinson, supra. What was there said, so far as in point here, will suffice.

The prime question now is: Does the record disclose a necessity for the receivership as the term necessity is used in such connection?

The suit wherein the receiver was appointed is a general creditors' bill on behalf of creditors of the estate of Dr. A. W. Bell, deceased, alleged by sworn bill to be insolvent.

The subject-matter of the receivership consists of numerous insurance policies issued upon the life of Dr. Bell, not yet collected from the insurers.

The bill, aided by the answer to interrogatories calling for discovery, discloses and describes twelve policies, aggregating $210,500. Two other policies are disclosed by the answer, but the amounts thereof and to whom payable are unknown.

Several policies antedate the indebtedness due complainant; others aggregating $170,500 are shown to have been issued after such indebtedness was incurred.

In some the wife of the insured, his daughters, or all of them, are named as beneficiaries. Others have been made payable to them by change of beneficiary pursuant to the terms of the policies, so that, on the face of the policies, they are now all so payable, save one policy of $10,000, which appears to be payable to the estate of the insured, and the two others whose amounts and to whom payable are alleged to be unknown. The names of the insurers, however, are disclosed.

Appellants challenge the appointment of the receiver for want of averment that they are insolvent or unable or unwilling to account for the proceeds of these policies so far as found subject to the claims of creditors.

This court, discountenancing all unnecessary receiverships, has, in a long line of cases, declared that in ordinary cases seeking to subject property to the payment of debts of the grantor because of fraud, an averment of insolvency or inability of the grantee to respond to any demand decreed against him is essential. Typical of these cases, we cite: Moritz & Weil v. Miller Schram & Co., 87 Ala. 331, 6 So. 269; Lehman-Durr Co. v. Griel Bros. Co., 119 Ala. 262, 24 So. 49; Warren & Co. v. Pitts, 114 Ala. 65, 21 So. 494; Meyer v. Thomas, 131 Ala. 111, 30 So. 89; Gilreath v. Union Bank & Trust Co., 121 Ala. 204, 25 So. 581; Petchey v. Allendale Land Co., 216 Ala. 167, 112 So. 818.

The authority of these cases is not to be questioned. Are they applicable to this case?

The final test is: Considering the whole case, does there appear a necessity for a receiver to protect the parties applying therefor against irreparable loss? Does the judicial mind, after weighing all the considerations for and against a receivership, conclude that the protection of the parties calls for the placing of the subject-matter in the custody and control of the court through a receiver? Is that the prudent and wise course?

With such thought in mind, we proceed to consider the situation here involved.

The subject-matter consists of insurance policies. They are yet to be collected. Should the funds they represent be intercepted and themselves appropriated where they belong, or should they pass into the hands of fraudulent grantees, to be recovered again by personal decree against them?

There are numerous claimants to these funds or some portion thereof:

First the exemptions due the wife and daughters under Code 1923, § 8277. All parties agree they are entitled to same; but the amount thereof and out of what policies they shall be paid is to be worked out with due regard to all...