Howell & Howell v. Harris, Cortner & Co.

• Citation: 168 Ala. 383,52 So. 935
• Parties: HOWELL & HOWELL ET AL. v. HARRIS, CORTNER & CO.
• Decision Date: 14 April 1910
• Court: Supreme Court of Alabama

52 So. 935

168 Ala. 383

HOWELL & HOWELL ET AL. v. HARRIS, CORTNER & CO.

Supreme Court of Alabama

April 14, 1910

Rehearing Denied June 30, 1910.

Appeal from Chancery Court, Lawrence County; W. H. Simpson Chancellor.

Action by Harris, Cortner & Co. against Howell & Howell and others. From an order appointing a receiver, defendants appeal. Reversed and remanded.

Chenault & Chenault and Kirk, Carmichael & Rather, for appellants.

C. M Sherrod and E. W. Godbey, for appellee.

SAYRE J.

Appeal from an order appointing a receiver. The order in question was made by the chancellor on December 21, 1909. The bill was filed on the next succeeding day. The point is made that the order is void because made by the chancellor in vacation and at a time when no suit was pending, and, in consequence, at a time when the chancellor was without jurisdiction. The precise point has been decided by this court in consonance with the contention of appellants on two occasions. Harwell v. Potts, 80 Ala. 70; Crowder v Moone, 52 Ala. 220. Appellees, appreciating the difficulty presented by the cited adjudications, argue, on the authority of Universal Savings Co. v. Stoneburner, 113 F. 251, 51 C. C. A. 208, and Horn v. Pere Marquette R. R. Co. (C. C.) 151 F. 626, that the bill should be treated as having been filed when the chancellor entertained it by making a judicial order thereon, or, what would amount to the same thing, the order should be treated as having become effective only from the time when the bill was filed. They also support the argument in an historical review, much in the line followed in the last-mentioned federal case, which goes to show that the master's office and the rules and paraphernalia thereof are no more than so much machinery instituted as an aid to the chancellor in the convenient and efficient exercise of his powers. And on these considerations, and upon the assumed necessity for a rule which would permit the appointment of a receiver by the chancellor in advance of bill filed in cases of pressing emergency, it is urged that the decisions of this court are opposed to both reason and authority.

In Universal Savings Co. v. Stoneburner, the assimilation of the equity powers exercised by the judges of the United States to the prerogative powers exercised by the ancient chancellors will appear in the following extract: "Appellants insist that when the order of May 25, 1901, was entered, the suit in which it purported to be issued had not at that time been instituted, and that therefore said order was null and void. This claim is based upon the fact that the bill was not lodged in the clerk's office until the 27th day of May 1901, and that the subp na did not issue until that date. In other words, the insistence is that a suit in equity has not been commenced until the subp na has issued. Appellants, therefore, claim that the receiver was appointed and the restraining order granted before the suit was commenced. While it is true that no process of subp na can issue from the clerk's office in any suit in equity until the bill has been filed in such office, still it does not follow that the court, or a judge thereof in chambers, may not enter an order on consideration of the bill before it has been so lodged in said office. Under the old English practice, from which our procedure is taken, all bills in equity were first presented to the judge, who determined whether process should issue thereon; and, if he so ordered, then the bill was filed in the clerk's office. Subsequent proceedings in such suits have been controlled chiefly by rules of court, and the practice established thereunder. We are not aware of any statute or rule of practice, nor of any authoritative decision, by which the contention of the appellants in this particular instance can be sustained. In this case the bill was presented to the court on Saturday, the 25th day of May, 1901; and one of the orders now complained of was on that day, after due consideration of the bill and exhibits, directed to be entered. The bill, therefore, was in fact filed on the 25th day of May, though it seems that process thereon did not issue until Monday, the 27th--a practice not at all uncommon in the courts of the United States. If, as a matter of fact, the order of the 25th of May by which the receiver was...