Heard v. Murray

• Citation: 93 Ala. 127,9 So. 514
• Parties: HEARD ET AL. v. MURRAY ET AL.
• Decision Date: 16 June 1891
• Court: Supreme Court of Alabama

9 So. 514

93 Ala. 127

HEARD ET AL. v. MURRAY ET AL.

Supreme Court of Alabama

June 16, 1891

Appeal from chancery court, Butler county; JOHN A. FOSTER Chancellor.

Bill filed by appellees, Murray, Dibbrell & Co., as simple contract creditors of George P. Heard, seeking to have a conveyance of Heard to W. L. Tillman set aside as fraudulent.

J C. Richardson, for appellants.

Zell Gaston and Gamble & Powell, for appellees.

McCLELLAN J.

This is an appeal from an order of the chancellor confirming the appointment of a receiver made by the register under section 3534, and brought before the chancellor for review under section 3535, of the Code. The receiver was appointed in the first instance without notice to the adverse parties, and solely upon the bill, which contained a prayer to that end and which was sworn to, and upon a petition, presented after bill filed, which set forth the facts relied on as authorizing the appointment, and which also was verified. On the hearing of the appeal before the chancellor, each side offered affidavits taken ad interim, going respectively, to show and deny the necessity and propriety of the appointment. It is insisted here that the chancellor was without authority to consider these affidavits, for that he could only pass on the case as presented to the register, and affirm or reverse the latter's action from the point of view occupied by him in making the appointment; and that this court, in reviewing the chancellor's action, cannot look to the case made before him, improperly, it is contended, by evidence which was not before the register. There are two considerations which must lead to the denial of these positions. In the first place, the note of submission on the appeal to the chancellor not only shows no objection on the part of the appellants there and here to the affidavits offered for complainants, but, in addition, shows that they themselves submitted the appeal on various affidavits, exhibits, etc., none of which were adduced, or could have been offered, on the original application to the register. They cannot now be heard to insist that the chancellor had no right to consider the case they thus presented to him, but they must succeed or fail on the present appeal accordingly as the action of the chancellor on the submission to him was or was not erroneous, wholly irrespective of the action which should have been taken had the appellate power of the chancellor been invoked solely to a review of the case made before the register. But, leaving this matter out of view, the position taken by appellants in this regard is abstractly unsound. The trial on appeal to the chancellor is necessarily de novo. The statute provides that, upon good reason shown to the register, he may appoint a receiver without notice. The appointment made here was without notice, and upon a purely ex parte showing as to the necessity for the action invoked. The defendants had no opportunity to controvert this showing, but the order was passed and the receiver commissioned before they were aware of the proceedings for that purpose. Surely it was not the intention of the law-makers that on their appeal to the chancellor they should not be allowed to offer anything in rebuttal of the showing made by their adversaries in their absence, and that whatever the real facts may be, and however short the true situation might fall of justifying the appointment, their mouths should be closed to show the truth. Such a construction would, in nine cases out of ten, makes of the appeal to the chancellor, intended manifestly to give the party complaining of the register's...