Engle v. Bronaugh

• Decision Date: 22 June 1922
• Docket Number: 8 Div. 396.
• Citation: 93 So. 868,208 Ala. 162
• Parties: ENGLE v. BRONAUGH.
• Court: Alabama Supreme Court

93 So. 868

208 Ala. 162

ENGLE v. BRONAUGH.

8 Div. 396.

Supreme Court of Alabama

June 22, 1922

Rehearing Denied Oct. 12, 1922.

Appeal from Circuit Court, Limestone County; Robert C. Brickell Judge.

Suit by J. B. Bronaugh against J. M. Engle. From a decree overruling motion to set aside decree confirming report of receiver defendant appeals. Affirmed.

Wert &amp Hutson and E. W. Godbey, all of Decatur, for appellant.

W. R Walker, of Athens, for appellee.

MILLER J.

This bill of complaint was filed by J. B. Bronaugh against J. M. Engle for a settlement of accounts and division of property between them under a contract or agreement by which complainant furnished the land and team to cultivate it, and the defendant furnished the labor with stipulations to divide the crops between them, and defendant was to care for the teams, hogs, and cattle on the land. On February 17, 1919, complainant filed petition verified by affidavit seeking the appointment of a receiver to take charge of the property mentioned in the bill of complaint. The petition was granted on February 17, 1919, by the court, and Luther Webb was appointed and qualified as receiver.

The cause was submitted for final decree; and on March 24, 1921, the court decreed complainant was not entitled to relief, the bill of complaint was dismissed, the cost was taxed against complainant for which execution was directed to issue; and the court ordered the receiver "to file a report and account of his acts as such receiver in this court within 30 days from this day" (March 24, 1921).

The receiver on May 30, 1921, filed in court a written report verified by his oath before a notary public; and on June 13, 1921, the court entered in open court the following decree on the report of the receiver:

"This cause coming on to be further heard at this term of the court, and it appearing to the court that Luther Webb, the receiver in this cause, heretofore made and filed his report as such receiver on May 30, 1921, and it further appearing to the court that notice of the filing of said report has been given the defendant and no exceptions having been filed thereto, it is therefore ordered, adjudged, and decreed that the said report of Luther Webb, receiver, in this cause, be and the same hereby is in all things confirmed."

The defendant on July 9, 1921, filed exceptions to the report of the receiver and prayed the court to set aside and vacate the decree confirming the report, and that it be referred to the register to ascertain and report thereon. The court on the hearing, by decree rendered August 9, 1921, overruled and denied the motion and petition to set aside the decree confirming the report of the receiver and directed "the register to pay over to J. M. Engle, the defendant, the proceeds of the sale of the cotton by the receiver under the former decree of this court, now in his hands as such receiver." From this decree of August 9, 1921, the defendant prosecutes this appeal, and assigns as error that part of it which overrules the motion of defendant to annul and set aside the decree confirming the report of the receiver; and also assigns as error the decree confirming the report of the receiver.

Will an appeal from that decree lie to this court? Does the statute authorize it? This decree, when considered in connection with all of the other decrees in the cause, is final. It directs and orders the money in the hands of the register from proceeds of sale of the cotton made by him and the receiver be delivered to the defendant. This appears to have been the end of the proceedings in the cause.

The court had by decree held complainant was not entitled to relief, dismissed the bill of complaint, taxed the complainant with the court cost, and directed the receiver to file report and account of his acts as such receiver. The receiver filed his report. It stated, among other things, "that Bogg Brothers simply took charge for said Mrs. Wressie Boggs of all property that came into possession of this receiver, except cotton," and "that said cotton was by order of this court sold by other parties than receiver, and the receiver is informed that the money was paid into the registry, and that it there remains." This report of the receiver was confirmed by the court. This money, by this decree appealed from, was directed to be paid by the register to the defendant. This decree, taken in connection with the others, was a final one in the cause; no other decree appears necessary. It will support an appeal to this court, when taken in time. Section 2837, Code 1907. The appeal was taken on August 20, 1921, by giving security for the cost. This was within the time allowed and in the manner directed by the statute. Gen. Acts 1919, p. 84, approved February 15, 1919.

The decree confirming the report of the receiver recites this:

"It further appearing to the court that notice of the filing of said report has been given the defendant, and no exceptions having been filed thereto."

The report was filed May 30, 1921. It was confirmed in open court June 13, 1921. The defendant had notice of the filing of the report. He filed no objections to it, and reserved no exceptions to the ruling of the court. He admits that he received a copy of the report on the 9th or 10th of June before it was confirmed. Court adjourned by operation of law at midnight, the last Saturday in June, 1921, and no motion had been made to set aside the decree. Gen. Acts 1915, pp. 707, 708; Chancery Rule 81, p. 1553, Code 1907. On July 9, 1921, exceptions were filed to it. This was too late under the circumstances. There must be a time when litigation in a case must end. When the defendant admits he had notice of the filing and a copy of the receiver's report on the 9th or 10th of June, 1921, before it was...