Ex parte Jonas

• Citation: 64 So. 960,186 Ala. 567
• Decision Date: 14 April 1914
• Docket Number: 812
• Parties: Ex parte JONAS.
• Court: Alabama Supreme Court

64 So. 960

186 Ala. 567

Ex parte JONAS.

No. 812

Supreme Court of Alabama

April 14, 1914

Original application by Rebecca Jonas for a writ of mandamus against the Judge of the Law and Equity Court of Mobile. Writ issued.

Mayfield and Sayre, JJ., dissenting.

Gregory L. & H.T. Smith and C.W. Tompkins, all of Mobile, for petitioner.

Henry Hanaw, Palmer Pillans, and R.T. Ervin, all of Mobile, for respondent.

GARDNER J.

On the 20th day of March, 1911, the Leinkauf Banking Company, a corporation, executed and delivered to one Harry B. Pake a deed of general assignment for the benefit of its creditors and the said Pake, on March 23, 1911, filed a petition in the law and equity court of Mobile, under the provisions of our statute (section 6060, Code), for the administration of said trust. The law and equity court assumed thereby jurisdiction of the administration of said trust, and the same is now pending in said court. The petitioners herein, who are ordinary creditors of the said Leinkauf Banking Company, whose verified claims have been filed in said court without the filing of objections thereto made a motion in the court below that the said Harry B. Pake be removed as trustee of said estate, assigning numerous grounds therefor. Evidence was duly taken before the register, and the court entered an order removing said Pake as trustee and appointing one Henry A. Horst as his successor. In his opinion, which appears in the answer of the respondent, the court said: "In determining as to whether the assignee should be removed, I must look primarily, to the interest of the trust; the assignee's interest being of secondary concern. Whether or not the assignee has violated his trust, or has been guilty of gross negligence in its administration to its loss, as charged against him in the petition, in view of the evidence taken, and reported by the register, I am of the opinion that the assignee is not the proper person to further execute the trust, and that it is to the interest of the trust that he should be removed. It may be that it will become necessary to institute suit or take other steps to recover for the trust moneys of the trust which certain persons may have received wrongfully, and because of the assignee's intimate personal relations with these persons and the fact that his selection as assignee was due to them I think it would be to the interest of the estate to intrust these matters to some trustee, and an order will be here entered removing him from the trusteeship, and requiring him to make final settlement of his accounts, and appointing a new trustee." The order of removal was accordingly entered, and the said Henry A. Horst was appointed trustee in the place of said Pake. The said Pake was also ordered to turn over to his successor all books of account and papers relating to the trust, and also all moneys and assets of the trust remaining in his hands, as soon as said Horst should give bond as trustee. The newly appointed trustee qualified as such by the execution of the bond required.

Thereafter said Pake filed his petition in said court, praying an appeal to the Supreme Court from said order, and that the court fix the amount of bond for supersedeas of said order or decree, and that upon the execution of such bond the said decretal order be superseded pending the appeal. In response to this petition, the court entered an order fixing the amount of supersedeas bond to be executed by said Pake upon appeal. The answer of the respondent (paragraphs 5 and 8) shows that the learned judge of the law and equity court so fixed the amount of said supersedeas, upon the idea that said Pake had by statute the absolute right of appeal from said order of removal. In paragraph 8 of the answer he says: "And respondent submits that his action was proper and lawful in the premises, and was the only action that he could lawfully take in the premises, for that, as respondent understands the law, he was without discretion in the premises save and except only as to the amount of the supersedeas bond; said Pake having the right to appeal and supersede, and the judge being required only to fix the amount of bond." Appeal having been taken by Pake, and the bond executed, the decretal order of removal has been considered as superseded pending said appeal, and said Pake has therefore continued as trustee. Petitioners here seek by mandamus to have said order fixing the amount of supersedeas upon appeal vacated, and to have the administration of said estate proceed through the newly appointed trustee.

The first question presented for consideration is whether or not the decretal order removing the trustee is such as will support an appeal by said Harry B. Pake. If not so appealable, then it is clear, and seems to be conceded by counsel for appellee, that petitioners are entitled to the relief they here seek, and that such a determination will be decisive of the case.

Counsel for the respective parties to this proceeding have cited us to no authority directly in point, and the question appears to be, at least in our state, a novel one.

Allowance of appeals to this court is wholly by legislative enactment. They are entirely of statutory creation, and, while such statutes are remedial and to be liberally construed, yet authority for the appeal must be found in the statute. Stoutz, Adm'r, v. Huger, 107 Ala. 248, 18 So. 126; May v. Courtnay, Tennant & Co., 47 Ala. 185.

Recognizing this to be the rule, counsel insist that the decretal order is a final decree, and that therefore appeal is provided by section 2837 of the Code, which in part reads as follows: "From any final judgment or decree of the chancery, circuit, or courts of like jurisdiction, city, or probate court, except in such cases as are otherwise directed by law, an appeal lies to the Supreme Court, for the examination thereof, as matter of right, on the application of either party, or his personal representative." It is urged that Pake was a party to the cause within the meaning of the above cited statute, and that the order removing him was final, and therefore that the appeal lies.

Section 6054 of the Code provides that, "when an express trust is created for the payment or security of debts, and by the terms thereof the trustee is not required to give bond with surety, any creditor interested therein may apply to the register of the court of chancery *** for an order requiring such trustee to give bond with surety for the faithful administration of the trust." The hearing of the application, etc., is provided for by the two subsequent sections, and section 6057 of the Code provides that, upon the failure of the trustee to execute the bond as ordered within three days, the register must enter an order removing him as a trustee and appoint his successor. There seems to be no provision for appeal from such order to this court. By section 6058 of the Code it is made the duty of the trustee of an express trust for the payment of debts to make an inventory of the entire trust property within a given time, copies of which are required to be filed in the office of the register.

If the value of the trust estate, as appraised, exceeds $1,000, then the trustee, or assignee, or any creditor, may by petition have the trust estate administered in the chancery court as provided by our statute. The jurisdiction of the court, in such instances, depends upon no equitable principle whatever; but, when the estate exceeds the sum of $1,000, it is the absolute right of the trustee, assignor, or any creditor, to have the same administered in the chancery court. The jurisdiction is conferred by the statute. Little weight can be attached, therefore, to the argument of counsel that it was upon petition of the trustee that the court first acquired jurisdiction. This is immaterial, for the reason that as a matter of absolute right the same jurisdiction could have been called into exercise by any creditor, or any number of them, or by the assignor.

Claims, under the statute, must be filed within a given time. The trustee is required to file his account with the register at stated times, and provision is made for the hearing of, and passing upon, said account, as is done by the administrator of the estate of a decedent. By section 6075 he may be compelled to file his account, by citation issued by the register, in all respects as executors and administrators may be compelled to make settlement in the probate court; or, upon motion of a majority in value of the creditors, the register must remove such defaulting trustee and appoint another in his stead, who may be nominated by the creditors in the manner provided for the nomination of an administrator of an insolvent estate by the creditors thereof.

There appears in the statute much similarity to the administration in the probate court of the estate of a decedent. If there is any appeal from such an order of removal as is provided by section 6075, it can be found only in the language of section 6072. This, however, it is unnecessary to decide.

Since we are concerned here with what is a final decree in a cause, it is well that we should consider the nature of the proceedings in the court below. It needs but a moment's reflection upon and consideration of the above statutes, to demonstrate that the subject-matter of the proceedings in the law and equity court is the administration of the trust estate.

In the case of Adams v. Sayre, 76 Ala. 517,...