Lambert v. Anderson

• Decision Date: 18 May 1933
• Docket Number: 5 Div. 131.
• Citation: Lambert v. Anderson, 227 Ala. 222, 149 So. 98 (Ala. 1933)
• Parties: LAMBERT et al. v. ANDERSON.
• Court: Alabama Supreme Court

149 So. 98

227 Ala. 222

LAMBERT et al. v. ANDERSON.

5 Div. 131.

Supreme Court of Alabama

May 18, 1933

Rehearing Denied June 29, 1933.

Appeal from Circuit Court, Elmore County; F. L. Tate, Judge.

Bill in equity, by E. F. Anderson, as receiver of the First National Bank of Tallassee, against G. W. Lambert, G. D. Lambert, C F. Fincher, E. A. Cox, E. W. Rhodes, and the Union Springs Guano Company, and cross-bill by Union Springs Guano Company and Union Springs Fertilizer Company.From a decree appointing a receiver, respondents G. W. and G. D. Lambert appeal.

Affirmed.

See also, 224 Ala. 110, 139 So. 287.

Huddleston, Glover & Jones, of Wetumpka, for appellants.

Steiner, Crum & Weil, of Montgomery, for appellee.

BOULDIN Justice.

The nature and purpose of the original bill is, for present purposes, sufficiently disclosed in Lambert v. Anderson,224 Ala. 110, 139 So. 287.

Pending the suit, Union Springs Guano Company and Union Springs Fertilizer Company, its successor in right and title pending the suit, filed their cross-bill to foreclose the mortgages upon thirty head of mules involved in the pending litigation, prayed for, and obtained the appointment of a receiver to conserve the property pending the suit.

The appointment was made by the judge of the court.The appeal is from such decree.The appointment is challenged because made without notice to respondents.

Code, § 10113, requiring notice when application is made to the register, is without application to appointments by the judge.

There are obvious reasons for safeguards against hasty appointment of receivers by the register, which may not obtain in appointments by the judge, especially receivership in cases where jurisdiction has been acquired on other equitable grounds, and the court is charged with a duty to conserve the property involved in the litigation pending the suit.

The averments of section (e) of the cross-bill present a state of facts, which, if true, called for the appointment of a receiver to prevent irreparable loss, and presented conditions warranting an appointment without notice.

Chief criticism is directed to the form of verification of the cross-bill.

In Burgess & Co. v. Martin,111 Ala. 656, 657, 658, 20 So. 506, 507, the affiant verified the bill"as true to the best of his knowledge, information, and belief."The court said:

"But to construe the affidavit, according to the general rule, most unfavorably to the party relying upon it, there is no room for affirmatively saying that it means anything more than that the affiant believes the allegations of the bill to be true, though he has neither knowledge nor information of their truth. * * *

"When it is upon information and belief, the verification should embrace both the facts that the affiant has been informed and believes them to be true, either in terms or by affirming positively that the facts alleged in the bill are true as therein stated."

It will be noted that the criticism was not because the bill was verified on information and belief, but because of the insufficiency of such verification for failure to depose on oath that affiant was informed of the truth of such allegations, and the information was such as to induce a sworn belief that they were true.

This decision has been followed in numerous cases.Among them, Smith-Dimmick Lumber Co. v. Teague, Barnett & Co.,119 Ala. 385, 24 So. 4;Schilcer v. Brock & Spight,124 Ala. 626, 27 So. 473;Sulzby v. Palmer,194 Ala. 524, 531, 70 So. 1.

The cases of Birmingham Disinfectant Company v. Smith,174 Ala. 374, 56 So. 721, andPetchey v. Allendale Land Co.,216 Ala. 167, 112 So. 818, recognize the rule of these former cases, and merely hold the verification in these latter cases did not comply therewith, in that the affidavit meant "no more than that affiant believes the averments of the...