Petchey v. Allendale Land Co.

• Decision Date: 12 May 1927
• Docket Number: 6 Div. 845
• Citation: 216 Ala. 167,112 So. 818
• Parties: PETCHEY v. ALLENDALE LAND CO.
• Court: Alabama Supreme Court

112 So. 818

216 Ala. 167

PETCHEY v. ALLENDALE LAND CO.

6 Div. 845

Supreme Court of Alabama

May 12, 1927

Appeal from Circuit Court, Jefferson County; Bessemer Division; C.B Smith, Judge.

Bill for appointment of a receiver by the Allendale Land Company against B.S. Petchey.From an order appointing a receiver defendant appeals.Reversed and remanded.

Appeal from order appointing receiver did not suspend his authority where cost bond only was given.

Receiver may be appointed without notice, in exercise of court's discretion, only in case of emergency or peril.

Goodwyn & Ross, of Bessemer, for appellant.

Huey &amp Welch, of Bessemer, for appellee.

SAYRE J.

Appeal from an order appointing a receiver.Appellee moves a dismissal of the appeal on the ground, inclusive in a general way of all others, that the ends of the receivership have been accomplished and the propriety of the appointment is now a moot question.The appeal was taken in accordance with the statute; appellant executing a bond for costs only.There was no supersedeas.The authority of the receiver was not suspended, and it is now made to appear to the court that, after the appeal had been perfected as stated above, the receiver filed a report showing that the personal property which had come into his hands in virtue of his appointment had been disposed of, and that, on the day before the submission of the cause in this court, the receiver had filed his final report in the court, from which the order of appointment emanated.The motion to dismiss must be denied.The appeal must be considered in order to a determination of the propriety of the order appointing the receiver with whatever consequences to the parties and to the receiver and their bondsmen such determination may involve.

The order appointing the receiver appears to have been made on the affidavit of one Adler, to whose rights in the premises the Allendale Land Company, appellee, had succeeded by assignment, and was made without notice to appellant.The controversy between the parties involves the control of a pig farm under lease to defendant(appellant) and the possession of a number of pigs and some farm truck, viz. some bushels of corn and greens and collards in the field.The affidavit appended to the bill is not satisfactory; it is not such an affidavit as the law requires in its place.It is that--

"He(affiant) is informed and believes that the facts set out in the foregoing bill of complaint are true and

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