Miller v. Lehman

• Decision Date: 20 June 1889
• Citation: 6 So. 361,87 Ala. 517
• Parties: MILLER ET AL. v. LEHMAN ET AL.
• Court: Alabama Supreme Court

6 So. 361

87 Ala. 517

MILLER ET AL. v. LEHMAN ET AL.

Supreme Court of Alabama

June 20, 1889

Appeal from chancery court, Lowndes county; JOHN A. FOSTER Chancellor.

Bill in equity by Lehman, Durr & Co. against C. L. Miller and others to set aside the transfer of a stock of goods on the ground of fraud, and for the appointment of a receiver. A receiver was appointed, and defendants moved to dismiss the bill for want of equity, and to vacate the order appointing a receiver. Both these motions were overruled, and defendants appeal.

Rice & Wiley and R. M. Williamson, for appellants.

Tompkins & Troy and Watts & Son, for appellees.

SOMERVILLE J.

The motion to dismiss the bill for want of equity clearly had no merit, and was properly overruled. The bill distinctly alleges the existence of a debt due by the defendant C. L. Miller to the complainants, and its amount, with the consideration upon which it was based. It further avers the insolvency of said Miller, and the transfer by him of a stock of goods and other property to his co-defendants, who are his brothers, and that this transfer was made without any valuable consideration, or on a mere simulated consideration, in secret trust for the benefit of the grantor, and with the intent to hinder, delay, and defraud the complainants and other creditors of the grantor, and that the grantees in this conveyance knew of the fraudulent motives of the grantor in making the transfer. This was manifestly sufficient in every particular, and fully justified the prayer of the bill.

The other assignments of error are based on the refusal of the chancellor to sustain the motion of the defendants to vacate the order appointing a receiver in the cause. A motion is made in this court to strike these assignments from the record as unauthorized in the present status of the cause. This motion must, in our judgment, be sustained. The receiver was appointed by the register in chancery under the authority conferred on him by the statute. If the defendants were dissatisfied with the appointment, they had the right to appeal from the action of the register to the chancellor, and have it reviewed before him; and, in the meanwhile, to have the order suspended upon giving bond, with sufficient sureties. Code 1886, § 3535. And if the chancellor confirmed the appointment an appeal would lie to this court, within 30 days from the filing of the order with the register, to be...