Pollard v. Southern Fertilizer Co.

• Decision Date: 09 February 1899
• Parties: POLLARD ET AL. v. SOUTHERN FERTILIZER CO.
• Court: Alabama Supreme Court

25 So. 169

122 Ala. 409

POLLARD ET AL. v. SOUTHERN FERTILIZER CO.

Supreme Court of Alabama

February 9, 1899

Appeal from chancery court, Russell county; W. L. Parks, Chancellor.

Bill in equity by the Southern Fertilizer Company against J. L Pollard, assignee, and others. From a decree appointing a receiver, defendants appeal. Reversed.

The complainant prayed that J. L. Pollard be restrained and enjoined from paying out or otherwise disposing of any of the funds that were in his hands at the time of the filing of the bill, or that might come into his hands from collections made by him under the authority of the deed of assignment, and for the appointment of a receiver to take charge of the moneys books, accounts, notes, mortgages, and other evidences of indebtedness which were owned at the time of the deed of assignment by J. L. Henry & Bro., and for such other and further relief as the equities of the bill showed the complainant was entitled to. The only evidence as to the true averments of the bill, as shown in the record, was the verification by one of the attorneys, which verification was as follows: "In person appeared before the undersigned officer, H. M. Land, who, first being sworn, deposes and says that he is attorney at law for the complainant named in the foregoing bill, and that the facts and allegations stated therein, so far as they come within his own knowledge, are true, and, so far as derived from the knowledge of others, he believes them to be true." This verification was fully signed before an officer authorized to administer oaths. The facts, as averred in the bill, upon which the complainant rested its right to the appointment of a receiver, are sufficiently stated in the opinion. Upon the filing of this bill, application was made to the chancellor by the complainant for the appointment of a receiver in vacation and without notice, and was submitted upon the averments of the bill and the verification thereof. Upon the hearing of this application, the chancellor granted it, and appointed a receiver. From this decree the respondents appeal, and assign the rendition thereof as error.

Smith &amp Henry, for appellants.

Miller & Miller and H. M. Land, for appellee.

TYSON J.

This is an appeal from a decree appointing a receiver without notice. The bill seeks to have the assets of the insolvent firm of J L. Henry & Bro. taken from the possession of the assignee to whom they made an assignment of all their property for the benefit of their creditors. The facts alleged in the bill upon which the complainant predicates its prayer for relief and its cause of action against Henry & Bro. are very loosely stated. The averments are vague and indefinite, and especially is this true as to the disposition of the money by Henry & Bro. which complainant alleges belonged to it. It is unnecessary, however, to give an extended notice to any of them except in so far as they bear upon the rights of Pollard, the assignee, who, it is averred, is in the possession of the property conveyed to him by the deed of assignment, and in the discharge of the trust imposed upon him by said deed. As to this conduct and administration of the trust, it is averred that he has collected a large sum of money of the assets of Henry & Bro. which is the property of the complainant, and refused to deliver it to complainant upon demand; that he has given no bond to faithfully administer the estate, and is likely to pay over to various creditors of Henry & Bro. the funds now in his hands and to come into his hands, realized from the collections made from the sale of complainant's property, and which is the money of complainant; "and as complainant has no remedy at common law by which it can wrest said trust funds out of the hands of said Henry & Bro. and J. L. Pollard as assignee, and by which it can compel said assignee to pay over to it said trust funds now in his hands, or that may come into his hands from future collection, your complainant is in great danger of suffering irremediable loss and damage without the interposition of the court of equity, and complainant avers that it is necessary to have a receiver duly appointed to take charge of and administer the assets herein referred to;...