McKleroy v. Gadsden Land & Improvement Co.

• Citation: 126 Ala. 184,28 So. 660
• Parties: MCKLEROY ET AL. v. GADSDEN LAND & IMPROVEMENT CO.
• Decision Date: 14 June 1900
• Court: Supreme Court of Alabama

28 So. 660

126 Ala. 184

MCKLEROY ET AL. v. GADSDEN LAND & IMPROVEMENT CO.

Supreme Court of Alabama

June 14, 1900

Appeal from chancery court, Etowah county; R. B. Kelly, Judge.

Bill by W. H. McKleroy and others against the Gadsden Land &amp Improvement Company. From a decree rendered in a suit instituted by a stockholder of the corporation restraining further proceedings in the first suit, complainants appeal and also make application for mandamus to compel the chancellor to vacate such decree. Decree affirmed, and writ denied.

The bill in this case had for its purpose the selling of the property of said company, the dissolving of the corporation winding up of its affairs, and the appointment of a receiver upon the grounds as set forth in said bill. Subsequent to the filing of said bill, and while suit was pending in the chancery court, another bill was filed by one Elliott, who was a stockholder in said corporation. The facts relating to these two suits, so far as is necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion. The appeal is prosecuted from a decree rendered in the second suit. This decree was as follows: "Upon consideration, the court being convinced that the appointment of a receiver in the last-named case was inadvertently made, and that said bill contains no equity, and that the decretal order of reference heretofore made in said cause was inadvertently made, it is therefore ordered and decreed that the register be, and he is hereby, directed not to hold said reference as directed in said decretal order of reference heretofore made in said cause; that said decretal order of reference be, and the same is hereby, set aside; that the order of submission of said cause (the case of McKleroy vs. Gadsden Land & Improvement Company) made at said term be, and the same is hereby, set aside, and said cause restored to the docket for trial. It is further ordered and decreed that unless said McKleroy et al. shall, within thirty days after the enrollment of this decree, so amend said bill, in the case of W. H. McKleroy v. The Gadsden Land & Improvement Company, so as to give it equity, and to justify and authorize the appointment of receivers for said corporation, as therein prayed for, that then the appointment of receivers heretofore made in said cause shall stand annulled, on said Elliott or some one for him giving bond in the sum of one thousand dollars, payable to the register in chancery for the district composed of Etowah county, and conditioned to pay all such costs and damages as any person may sustain by reason of the setting aside of the order restraining said receivers from acting in case the same is set aside, said bond to be approved by the register; and in case the McKleroy bill is amended, or sought to be amended, so as to give it equity, said Elliott may again apply for a restraining order as now prayed for, on five days' notice to the opposite parties of said application and the time and place of hearing the same. All other questions are reserved." There was a motion made in this court to dismiss the appeal upon the ground that the decree appealed from was not such as would sustain an appeal. The appellants in said cause also made a motion in this court for a mandamus, directed to the chancellor rendering the decree, commanding him to set aside and vacate the decree, and to proceed to wind up the affairs of the corporation in accordance with the averments and prayer of the bill in the first cause.

Willett & Brothers, for appellants.

Denson & Tanner and W. J. Boykin, for appellee.

TYSON J.

The order or decree appealed from is neither such an interlocutory decree nor a final decree as will support an appeal. Code, §§ 426, 427. Without a final decree or a special appeal from certain interlocutory orders, this court is without jurisdiction to entertain an appeal from orders of a lower court in a pending suit. In the order attempted to be appealed from in this case there is no adjudication that McKleroy is a creditor, or that his co-complainants are stockholders, or of any matter of default on the part of the corporation. The motion to dismiss the appeal must be granted.

The application for a mandamus requires a more extended consideration. A simple contract creditor, for a small amount, without a judgment or lien, united with a small minority of the stockholders of the Gadsden Land &amp Improvement Company, a corporation under the laws of Alabama, located at Gadsden, in a joint bill to collect the debt of the creditor, to appoint a receiver of the property, and to dissolve and wind up the corporation, and make a distribution of its assets among its stockholders, after paying its debts, including the costs of the winding-up process. This suit was brought against the corporation only, and the president of the defendant, it seems without request, accepted service of the summons before it was placed in the hands of the sheriff for service, and on the same day put in an answer admitting the allegations of the bill, saying nothing in bar or preclusion of the decree sought. On the same day the cause was submitted in chambers to the chancellor for the appointment of a receiver. The order prayed for was granted, on the ground, as shown by its recitals, that the averments of the bill had been admitted to be true by the defendant "by answer this day filed." The president of the corporation was one of the receivers thus appointed. Two months afterwards the cause was submitted for final decree on the "original bill and report of the receivers," the respondent corporation submitting on its answer, thus furnishing the evidence for a decree. The chancellor rendered a decree in which he said, "It seems to the court that the complainants are...