Hershey Chocolate Co. v. Sharpe

• Decision Date: 01 February 1917
• Docket Number: 6 Div. 372
• Citation: 199 Ala. 21,74 So. 33
• Parties: HERSHEY CHOCOLATE CO. v. SHARPE, Judge.
• Court: Alabama Supreme Court

74 So. 33

199 Ala. 21

HERSHEY CHOCOLATE CO. v. SHARPE, Judge.

6 Div. 372

Supreme Court of Alabama

February 1, 1917

Petition by the Hershey Chocolate Company for mandamus to compel H.A Sharpe, as Judge of the City Court of Birmingham, to vacate and annul an order granted by him setting aside a judgment obtained by petitioner against Joseph A. Yates as receiver and others. Denied.

The cause as it originally stood was a suit by the Hershey Chocolate Company against Joseph A. Yates, as receiver of the Wiley Candy Company, and the sureties on his official bond and claimed certain damages for the breach of a bond given by said Yates as such receiver of the Wiley Candy Company; the breaches alleged being that he had broken the conditions of his bond, in that he had failed to pay petitioner certain sums of money for goods which said petitioner did bargain sell, and convey to said Yates, as such receiver, all of which are still due and unpaid. Judgment was entered nil dicit on November 2, 1914, against the receiver and his official bond, which judgment was on December 1, 1914, set aside.

Sterling A. Wood, of Birmingham, for appellant.

George E. Bush, of Birmingham, for appellee.

SOMERVILLE J.

The petitioner herein recovered a judgment by nil dicit against one Yates, as receiver of the Wiley Candy Company, and the surety on his receiver's bond; and within 30 days thereafter the defendants filed and presented to the trial court their motion to set aside and vacate the judgment. This motion was granted, and the judgment accordingly set aside. One ground of the motion--the one upon which the court seems to have based its action--was that the complaint did not state a cause of action.

On the theory that the action of the trial court was unauthorized and void, the plaintiff now seeks by mandamus to compel the vacation of the order setting aside the judgment, and the reinstatement of the judgment.

Section 5730 of the Code authorizes a suit against any receiver or manager of property, appointed by any court, "in respect to any act or transaction of his in carrying on the business connected with such property in this state, without the previous leave of the court in which such receiver or manager was appointed. A judgment thus obtained becomes an ascertained charge upon the property in gremio legis, subject to the orders and decrees of the court to which the receivership is attached. 34 Cyc. 447(B).

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