Meyer v. Thomas

• Citation: 131 Ala. 111,30 So. 89
• Parties: MEYER v. THOMAS ET AL.
• Decision Date: 18 April 1901
• Court: Supreme Court of Alabama

30 So. 89

131 Ala. 111

MEYER v. THOMAS ET AL.

Supreme Court of Alabama

April 18, 1901

Appeal from chancery court, Marengo county.

Action by Ferdinand Meyer against Alex Thomas and others. Decree for defendants, and plaintiff appeals. Affirmed.

It was shown by the bill that the complainant had made advances to Alex Thomas, and to secure the same had taken a mortgage upon a wagon, two mules, and the crops to be grown by said Thomas on lands which he had rented from Narcissa Knight during the year 1900. It was further shown that Alex Thomas was the tenant of Narcissa Knight, who owned the land upon which the crops mortgaged to the complainant were to be grown, and owned other farm lands; that Sydney H. Knight was the husband of Narcissa Knight. The averments of the bill, sufficient to an understanding of the decision on the present appeal, are sufficiently stated in the opinion. In addition to the averments as set forth in the opinion, it was further averred that, by reason of an alleged conspiracy between Thomas and Narcissa and Sydney Knight, notice to the respondents "would be simply a warning to them to put said crops out of the way, and would render useless the receivership hereinafter asked for." The prayer of the bill was that the mortgage from Thomas to the complainant be foreclosed and that a receiver be appointed to take charge of said lands and the crops growing thereon, and gather the same, and prepare the same for market, and sell them, and hold the proceeds subject to the further order of the court. Upon the filing of this bill, which was verified by affidavit of the complainant, and accompanied by the affidavit of one Kelly the register appointed a receiver without notice to the respondents. From the appointment of this receiver by the register the defendants appealed to the chancery court. On the hearing of the appeal by the chancellor, several affidavits were introduced by the defendants and by the complainant, and the chancellor rendered a decree sustaining the bill, and adjudging that the appointment of the receiver was improperly made, and ordered that the order of the register making such appointment be revoked, vacated, set aside, and annulled; and further ordered that the receiver so appointed restore all the property received by him to the defendant from whom he received it. From this decree the complainant appeals, and assigns the rendition thereof as error.

Tayloe & Taylor, for appellant.

Thos E. Knight, for appellees.

TYSON J.

This appeal is prosecuted from an order of the chancellor vacating the appointment of a receiver by the register. The point is made that it cannot be entertained, and should, therefore, be dismissed. The statute confers authority both upon chancellors and registers to appoint receivers, and, where the appointment is made by a register, an appeal from his order lies to the chancellor. Code, §§ 799, 800. Section 429 of the Code, under which this appeal was taken, is in the following language: "An appeal lies from an order of the chancellor, made in term time or vacation, appointing or refusing to appoint a receiver, within thirty days from the filing of the order with the register; and such appeal must be taken and deemed by the supreme court as a preferred case," etc. In the cases of Heard v. Murray, 93 Ala. 127, 9 So. 514, Werborn's Adm'r v Kahn, 93 Ala. 201, 9 So. 729, Taylor v. Dwyer (Ala.)

28 So. 1014, appeals were entertained by this court from the order of the chancellor refusing to disturb the appointment made by the register. The chancellor, on appeal to him, in revising the exercise of authority by the register, where the appointment is made without notice, as here, is not confined to the case as made by the application to the register, but the hearing is de novo. His order, if he sustains the appointment, is nothing more than a continuance of the receivership and the equivalent of an appointment by him of the receiver in the first instance. So his order vacating the appointment is the refusal by him to make the appointment as upon application made to him for that purpose. The opinion in the case of Miller v. Lehman, Durr & Co., 87 Ala. 517, 6 So. 361, when properly construed, is...