Clifford v. Montgomery
Decision Date | 10 April 1919 |
Docket Number | 7 Div. 981 |
Citation | 81 So. 551,202 Ala. 609 |
Parties | CLIFFORD v. MONTGOMERY. |
Court | Alabama Supreme Court |
Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.
Petition for compensation as receiver by J.L. Montgomery, opposed by M. Clifford. From the decree allowing compensation, Clifford appeals. Affirmed.
Willett Willett & Walker, of Anniston, for appellant.
S.W Tate, of Anniston, for appellee.
The appeal is from a decree allowing compensation to the receiver for the operation of a hotel, under the direction of the court.
The petition for compensation, after demurrer thereto was overruled, was answered, in which it was alleged that the compensation claimed was "grossly excessive; that the operation of the said Anniston Hotel has required no great amount of skill or ability, but the operation of the hotel consists in simple routine work; that no dining room has been operated by the receiver in connection with the hotel, the same being a rooming house only; that the receiver is not a hotel man or an experienced hotel man, and that his services do not command the compensation that that of an experienced hotel manager would command;" and that the receiver has not given the attention he should have given, has permitted "paper, trash, and débris" to accumulate in said hotel, and this, among other things, is a reason why the claim is excessive.
After testimony of witnesses Montgomery and Edmondson was taken in open court before the judge, and after consideration of all the evidence, Montgomery was allowed, as receiver, the sum of $200 per month, aggregating the sum of $1,600; the decree concluding that "all other questions are reserved." For such decree the appeal is prosecuted.
The test of finality of a decree to support an appeal is, not whether the cause remains in fieri in the court of equity awaiting further proceedings to entitle the parties to their acquired right, but whether such decree ascertains and declares such rights embracing the substantial merits of the controversy, and the material issues of fact and law litigated or necessarily involved. A denial of an assignee's petition for ascertainment, by reference, of his reasonable compensation, is a final decree and appealable. De Graffenried v. Breitling, 192 Ala. 254, 259, 260, 68 So. 265; Plunkett v. Dendy, 197 Ala. 262, 264, 72 So. 525. That is to say, such judgment is final, in that it will support an appeal by the party adversely concluded thereby. Magee v. Cowperthwaite, 10 Ala. 966; Thornton v. H.A. & B.R.R. Co., 94 Ala. 353, 356-358, 10 So. 442; Cobbs v. Vizard Inv. Co., 182 Ala. 372, 374, 62 So. 730, Ann.Cas.1915D, 801; Coffey v. Gay, 191 Ala. 137, 67 So. 681, L.R.A.1915D, 802; State v. Ala. & C.R.R. Co., 54 Ala. 139, 140; Bosworth v. St. L. Terminal R. Ass'n, 174 U.S. 182, 189, 19 Sup.Ct. 625, 43 L.Ed. 941.
In Andrews v. Grey, 74 So. 62, this court said of a decree founded on testimony taken orally in open court under the provisions of Gen.Acts 1915, p. 705, that the same presumption will be indulged by the Supreme Court in favor of the chancellor's findings as are accorded the findings of a register based on oral testimony, under construction of Code,§ 5955, subd. 1. Manchuria S.S. Co. v. Donald & Co., 77 So. 12; Blair v. Jones, 78 So. 69; Barton v. Burton Mfg. Co., 79 So. 664. The presumption as to findings of registers upon the oral examination of witnesses is that it is correct and should not be disturbed if there is a reasonable doubt as to whether it is correct; and this rule applies to the review of such finding, both by the chancellor and by the Supreme Court. Bidwell v. Johnson, 195 Ala. 547, 70 So. 685, and authorities; Andrews v. Grey, supra; A. T. & N. Ry. Co. v. Aliceville Lbr. Co., 74 So. 441, 448. Such findings have the effect of a jury's verdict. Union Mut. Aid Ass'n v. Carroway, 78 So. 792; Burgess v. Burgess, 79 So. 193. Under the rule prevailing at law, such finding would not be set aside. N.C. & St. L. Ry. Co. v. Crosby, 194 Ala. 338, 70 So. 7.
The like rule was recently announced:
." Sullivan Timber Co. et al. v. Black, 159 Ala. 570, 588, 48 So. 870.
Were this not the rule, courts of chancery would be seriously inconvenienced in the efficient administration of such trust estates through the officers of the court. Coffey v. Gay, supra, 191 Ala. 139, 67 So. 681, L.R.A.1915D, 802, 807; Saulsbury v. Lady Ensley Coal, I. & R. Co., 110 Ala. 585 20 So. 72; Batten v. Wedgewood C. & I. Co. (1884) 28 Ch.D.L.R. 317, 324; High on Receivers (4th Ed.) § 781, and authorities; 1 Clark, Law of Receivers, § 826. The necessity for such rule, and (in the absence of legislation) the embarrassment that would result were it otherwise, are well stated by the Lord Justice Turner as follows:
Morison v. Morison, 7 De Gex M. & G. 214, 226.
Mr. High says:
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