Pagett v. Brooks

• Decision Date: 07 June 1904
• Citation: 37 So. 263,140 Ala. 257
• Parties: PAGETT ET AL. v. BROOKS ET AL.
• Court: Alabama Supreme Court

37 So. 263

140 Ala. 257

PAGETT ET AL. v. BROOKS ET AL.

Supreme Court of Alabama

June 7, 1904

Appeal from Circuit Court, Covington County; John P. Hubbord, Judge.

Action by one Brooks and others against E. G. Pagett and others. From a judgment for plaintiffs, defendants appeal. Reversed.

It was averred in the complaint and shown by the evidence that upon bill filed by some of the defendants in the chancery court of Covington county against the appellees, and in accordance with the petition therefor, there was a receiver appointed of property alleged to belong to the plaintiffs, who were the defendants in said chancery suit; that as a condition to the appointment of this receiver a bond was made by the defendants in the present suit, which was conditioned as required by the statute; that upon the final hearing of the chancery suit on the pleadings and proof a decree was rendered dismissing the complainants' bill. Thereupon the present suit was brought to recover damages for the breach of the receiver's bond. The other facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence the court, at the request of the plaintiffs gave to the jury the general affirmative charge in their behalf. The defendants duly excepted to the giving of this charge, and also excepted to the court's refusal to give the general affirmative charge requested by them.

Powell Albritton & Albritton, for appellants.

Sollie & Kirkland, for appellees.

TYSON J.

This action is to recover damages for the breach of a bond executed in pursuance to the provisions of the act of February 18, 1895 (Acts 1894-95, p. 585), now constituting sections 801 and 802 of the Code of 1896. The condition of the bond is that required by the statute. It is that the obligors "shall pay or cause to be paid all damages which any person may suffer by the appointment of such receiver if such appointment is vacated." It is shown by the complaint and the evidence that the cause in which the receiver was appointed was determined upon final hearing adversely to the complainants therein, and their bill dismissed; but it does not appear that an order was ever made, either in the final decree or otherwise, vacating the appointment of the receiver, or removing or discharging him. From this statement it will readily be seen that the question presented is whether a final decree upon the merits dismissing the complainant's bill, without more, operated to vacate the appointment of the receiver within the meaning of the statute and the condition of the bond. It cannot be seriously doubted that the burden is upon the plaintiffs to show by averments and proof, in order to entitle them to a recovery, that the appointment of the receiver was vacated. His removal or discharge, if it be conceded that such was the effect of the decree, will not suffice. There is a clear distinction between vacating the appointment of a receiver and his removal or discharge, although these words are frequently used indiscriminately by the courts as synonymous. To vacate the appointment is to set aside the order of appointment because improvidently granted, the motion for which is based on the circumstances and conditions attending the appointment. The term "remove," as applied to a receiver, means simply a change in the personnel of the receivership, which continues unaffected. The effect of the removal is only to substitute one person for another in the office. The cause of the "removal" of a receiver is some personal objection to him. The "discharge" of a receiver relates to the termination of the receivership and is asked and ordered for the reason that, because of the state of the suit, there is no longer any necessity for continuing the receiver. Beach on Receivers, § 776. It is clear from these definitions that, while the vacating of the order of appointment results in the same way as does a removal or discharge of the...