Pearce v. Jennings

• Decision Date: 13 January 1892
• Citation: 94 Ala. 524,10 So. 511
• Parties: PEARCE ET AL. v. JENNINGS ET AL.
• Court: Alabama Supreme Court

10 So. 511

94 Ala. 524

PEARCE ET AL. v. JENNINGS ET AL.

Supreme Court of Alabama

January 13, 1892

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

Action by Thomas W. Jennings and others against J. Hollie Pearce and others to set aside a transfer of personal property on the ground of fraud, and to have a receiver appointed. From a decree appointing a receiver, defendants appeal. Reversed.

Richardson & Reese, for appellees.

CLOPTON J.

We will not undertake to decide whether the bill shows that complainant has such interest in, title to, or incumbrance on the property in controversy as is essential, under section 3414 of the Code, to give courts of chancery jurisdiction of non-residents, when the object of the suit concerns personal property in this state. The bill shows, not only that a material defendant resides, and that the property which complainant seeks to reach is, in this state, but also that the non-resident defendant, who asserts an adverse claim, was found here, and personally served with process. This is sufficient, if there be no other objection, to authorize the court to take cognizance of the case.

The case made by the bill does not come within the class of cases in which a court of equity will intervene to aid a creditor with a lien in obtaining satisfaction by removing a fraudulent conveyance, obstructing the complete execution of the process of law. Though purporting to be in aid of proceedings at law, the bill is evidently filed under section 3544 of the Code, which provides: "A creditor without a lien may file a bill in chancery to discover or to subject to the payment of his debt any property which has been fraudulently transferred or conveyed, or attempted to by fraudulently transferred or conveyed, by his debtor." As, however, no objection to this character and frame of the bill is made by demurrer or otherwise, we will not decide whether a creditor who has sued out an attachment at law, and had the same levied on personal property, whereby a lien is created in his favor, may, under the statute, file a bill to invoke the aid of the court in the enforcement of the inchoate and conditional lien acquired by the levy of the attachment, or, independently, a bill to subject the property levied on to the payment of the same debt on which the attachment is founded by removing a fraudulent conveyance. As this appeal involves only the question of the appointment of a receiver, the averments in respect to the suing out and levy of the attachment are important and material only as they affect the propriety of appointing a receiver. Receivership is adopted by courts of equity as a suitable and efficient mode of saving the subject of litigation from waste, loss, threatened destruction, material injury, or removal beyond the jurisdiction of the court,-its preservation for the benefit of the party ultimately decreed to have the right. Owing to the injustice often resulting therefrom, the authority to appoint a receiver, it has been frequently observed, should be exercised with caution and circumspection. As a general rule a receiver should not be appointed unless the court is able to see some resultant benefit to the party seeking the relief, not otherwise obtainable, or that some injury, not otherwise avoidable will ensue from the refusal, and only when a reasonable necessity is shown. The circumstances charged in the bill and shown by the affidavits which, it is insisted, justify the appointment of a receiver, are that Henry Pearce, one of the defendants, who is indebted to complainant in a sum of about $1,200, is owner of the horses, mules, wagons, and other personal property...