Brooks v. Everett, 7 Div. 504

• Decision Date: 03 November 1960
• Docket Number: 7 Div. 504
• Citation: 271 Ala. 380,124 So.2d 100
• Court: Alabama Supreme Court
• Parties: Ruby E. BROOKS v. Alma Brooks EVERETT et al.

Page 100

124 So.2d 100

271 Ala. 380

Ruby E. BROOKS v. Alma Brooks EVERETT et al.

7 Div. 504.

Supreme Court of Alabama.

Nov. 3, 1960.

Pilcher & Floyd, Ludger Martin, Roberts & Orme and G. Coke Williams, Gadsden, for appellant.

Beddow, Embry & Beddow, Birmingham, for appellees.

LAWSON, Justice.

The appeal is from a decree of the Circuit Court of Etowah County, in Equity.

Submission was on appellees' motion to dismiss the appeal and on the merits.

Motion to Dismiss Appeal

The first ground of the motion reads:

'For that appellant's brief and artument in this cause was not served upon counsel for appellees in compliance with Rules 11 and 44 of the Revised Rules of the Supreme Court of Alabama in that service was attempted to be had by United States mail but that said brief was deposited in the United States mail without postage prepaid as required by the said Rule 44 of the Revised Rules of the Supreme Court of Alabama.'

Appellant's brief is followed by a certificate signed by one of her attorneys to the effect that on June 16, 1960, a copy of the brief was mailed to Honorable Hobdy Rains, one of appellees' attorneys. Supreme Court Rule 11, Code 1940, Tit. 7 Appendix. The certificate also alleged that service of a copy of the brief was had on Mr. Rains 'by placing a copy of the same in the United States mail, postage prepaid, properly addressed to him at * * *.' Supreme Court Rule 44.

Mr. Rains did not receive the brief in the due course of the mails in that the envelope in which the brief was mailed did not contain sufficient postage. Four cents postage was due. On June 21, 1960, Mr. Rains paid the four cents and the brief was then delivered to him. He thereby received a copy of appellant's brief four days after the original was filed in this court and within the time prescribed for the filing of appellant's brief. The last day for the filing of appellant's brief in this court was June 22, 1960.

We do not think the appeal should be dismissed because of the circumstances related above. As pointed out, an attorney for appellees received a copy of appellant's brief within the time for the filing of that brief in this court. Our recent case of Board of Commissioners of City of Montgomery v. Crenshaw, 270 Ala. 598, 120 So.2d 870, is not apposite. In that case a copy of appellant's brief did not reach appellee's counsel until after the expiration of the time allowed for the filing of appellant's brief in this court. Because of the delay in receiving a copy of the appellant's brief, we granted the request of appellee for an extension of time within which to file his brief.

The other ground of the motion to dismiss the appeal reads:

'For that none of appellant's assignments of error are referred to or presented sented by way of argument in appellant's brief filed in this cause.'

There are thirty-eight assignments of error. None of them are specifically referred to in appellant's brief, which falls short of complying with Supreme Court Rule 9. However, we have held that although appellant's brief does not comply with the rule, if it fairly and helpfully makes the points upon which appellant relies this court may, in its discretion, consider those points on their merits. Edge v. Bice, 263 Ala. 273, 82 So.2d 252; Kendall Alabama Co. v. City of Fort Payne, 262 Ala. 465, 79 So.2d 801.

In our opinion, appellant's brief warrants our consideration of assignments of error to the effect that the trial court erred in appointing a receiver and in issuing a temporary injunction.

The motion to dismiss the appeal is overruled.

On the Merits

Calvin E. Brooks died in Etowah County on August 24, 1958. He was survived by his wife, Ruby E. Brooks, and by three children of a former marriage, namely, Alma Brooks Everett, Haskell Brooks and Harley Brooks.

This litigation grew out of a controversy between the widow and the children.

On August 30, 1958, Ruby E. Brooks offered for probate in the Probate Court of Etowah County an instrument which she alleged to be the last will and testament of Calvin E. Brooks. One of the children, Alma Brooks Everett, filed a contest. That cause was removed to the Circuit Court of Etowah County where it was tried in February, 1960, before a jury. The verdict of the jury was that the instrument offered by Ruby E. Brooks was not the last will and testament of Calvin E. Brooks and a judgment to this effect was duly entered.

The bill in this case was filed in the Circuit Court of Etowah County, in Equity, on March 5, 1960, by the above-named children of Calvin E. Brooks against his widow, Ruby E. Brooks.

The case made by the bill is substantially as follows:

Calvin E. Brooks died seized and possessed of a considerable estate, consisting of both real and personal property, including a business which he operated known as Brooks Furniture Company.

From the time of the death of Calvin E. Brooks on August 24, 1958, until the filing of this bill there had been no appointment of 'a receiver, trustee, administrator or otherwise of the Estate of Calvin E. Brooks * * *.'

Immediately after the death of Calvin E. Brooks the widow, Ruby E. Brooks, took possession of all of the property of which Calvin E. Brooks had died seized and possessed, without any authority so to do, and has continued to exercise dominion and control over such properties as if they were her own.

She has operated Brooks Furniture Company and has collected the accounts due that business and paid the debts which were owed on the inventory and has treated the inventory as if it were her own. She has co-mingled the assets of the company with her personal assets. She has retained possession of funds received from the sale by Brooks Furniture Company of goods, wares and merchandise. She has furnished her own rental property with furniture and equipment which were a part of the inventory of Brooks Furniture Company.

She took possession of two automobiles and a truck which had belonged to her husband at the time of his death. She used the truck in connection with her operation of the furniture company and she and members of her family used the automobiles for their personal use.

She took possession of money which belonged to her husband and which was on deposit in a Gadsden bank and has comingled it with her own money.

She has collected rentals on the decedent's real properties in an amount approximating $1,000 per month.

Ruby E. Brooks has never rendered an accounting or 'reported her acts and doings in connection' with the property of her deceased husband to the complainants. She has told the complainants that they would get none of the property left by their father.

Because of such conduct on the part of Ruby E. Brooks the property left by Calvin E. Brooks 'is in imminent danger of depreciation or waste or of dissipation, and by the passage of time the ascertainment of the values of said property, the true amount of personal assets owned by decedent at the time of his death, the location thereof and the recovery of any of such which has been diverted or co-mingled or dissipated by respondent herein will be made difficult, if not impossible * * *.'

The bill prayed that a temporary injunction be issued restraining the respondent, Ruby E. Brooks, from conducting the business known as Brooks Furniture Company and from making disposition of any of the chattels, goods, wares or merchandise located therein and from disposing of, concealing or dissipating any of the personal property which belong to Calvin E. Brooks at the time of his death. The bill further prayed that upon final hearing the injunction be made permanent.

The bill also prayed for the appointment of a receiver to take possession of and to manage and control the assets of which Calvin E. Brooks died seized and possessed, including the business known as Brooks Furniture Company, until there is a final sale and distribution of the assets of the estate of the said Calvin E. Brooks.

On March 5, 1960, the date on which the bill was filed, one of the judges of the Circuit Court of Etowah County made an order to the effect that a hearing on the application for the temporary injunction and for the appointment of a receiver was to be had on March 9, 1960.

Two days later, on March 7, 1960, over the objections of the complainants, an order was entered continuing the hearing from March 9, until April 8, 1960. That order contained this further provision: '* * * and defendant Ruby E. Brooks ordered to make a bond for $50,000.00 executed by a reputable and solvent security bonding company payable to the heirs of Calvin E. Brooks estate and returnable to the Equity Court of the county.'

Thereafter, on March 16, 1960, the complainants filed an instrument which they called a 'Petition' wherein they referred to the filing of their original bill and the court's order of March 7, 1960, and then averred that 'Attorneys for the Respondent made it known to the Court that the bond would be filed immediately but, as of this date, said bond has not been filed and the Respondent is committing further waste in that she has employed unnecessary help at the store and the Complainants are informed and verily believe that the stock of goods, merchandise and furniture is being sold at a below cost figure and that the Respondent is selling, at auction, new furniture, further depleting the merchandise and stock of the Brooks Furniture Company, without any authority to do so.' The 'Petition' prayed 'that some person be appointed to conserve that part of the Estate of Calvin E. Brooks consisting of the stock of goods and the accounts receivable and rents, and the bank accounts of the Brooks Furniture Company, to act on behalf of the Court for the heirs until the date of the hearing of the original Bill of Complaint,' and for general relief. The 'Petition' was not in the form of an amendment to the bill theretofore filed on March 5, 1960.

The same judge who had continued the hearing on the original ...