Preuit v. Wallace

• Decision Date: 15 June 1939
• Docket Number: 8 Div. 974.
• Citation: 189 So. 887,238 Ala. 162
• Parties: PREUIT v. WALLACE ET AL.
• Court: Alabama Supreme Court

189 So. 887

238 Ala. 162

PREUIT v. WALLACE ET AL.

8 Div. 974.

Supreme Court of Alabama

June 15, 1939

Appeal from Circuit Court, Lawrence County; A. A. Griffith, Judge.

Bill in equity by B. P. Wallace against Lerlene Preuit and others for appointment of a receiver, etc. From a decree confirming appointment of receiver, the named respondent appeals.

Reversed rendered and remanded.

W. L Chenault, of Russellville, for appellant.

H. A. Entrekin, of Cullman, and Earle Proctor and Perdue & Miller, all of Moulton, for appellees.

GARDNER Justice.

One Heidt and others brought statutory ejectment against B. P. Wallace and others for recovery of 340 acres of land, and claimed $500 for detention thereof. Among the defendants was Lerlene Preuit, appellant here.

Defendant Wallace sought and obtained a transfer of the cause to the equity docket. Section 6490, Code of 1923. The rulings on the motion to transfer and on demurrer to the bill subsequently filed are not here presented nor argued by counsel, and need, of consequence, no discussion here (Hayes v. Jasper Land Co., 147 Ala. 340, 41 So. 909), save as affects in a general way the question here for consideration.

Wallace in his bill asked for and obtained from the register an order appointing a receiver of all the lands, including that of his own, of which he was in possession. Upon appeal to the chancellor, the appointment was confirmed,--sections 10113 and 10114, Code of 1923,--and from that order the appeal is prosecuted to this Court, and presents the only question here for review. Section 6082, Code of 1923; Miller v. Lehman, Durr & Co., 87 Ala. 517, 6 So. 361; Heard v. Murray, 93 Ala. 127, 9 So. 514; Meyer v. Thomas, 131 Ala. 111, 30 So. 89.

As the hearing before the chancellor was de novo (Meyer v. Thomas, supra), it is proper that the amendment to the bill filed after the appointment by the register, but prior to the hearing before the chancellor, be considered. But so considered, we are of the opinion the appointment of the receiver was not justified. It is universally recognized that the power of appointment of a receiver is a delicate one, to be exercised with great caution, and to be resorted to only in extreme cases, where it appears complainant will sustain irreparable loss. Lost Creek Coal Co. v. Scheuer, 222 Ala. 400, 132 So. 615; McDermott v. Halliburton, 219 Ala. 659, 123 So. 207; Taylor v. Hoffman, 229 Ala. 420, 157 So. 851; McDermott v. Halliburton, 220 Ala. 553, 126 So. 854. The appointment is a matter of sound judicial discretion, to be exercised in view of all the circumstances of the particular case, and one of the most material circumstances, without which the court would hardly make the appointment, is the reasonable probability that the plaintiff, asking for a receiver, will ultimately succeed in obtaining the general relief sought for by his suit. Warren v. Pitts, 114 Ala. 65, 21 So. 494; Hayes v. Jasper Land Co., 147 Ala. 340, 41 So. 909; 72 Am.St.Rep. 33. Ordinarily a person cannot have a receiver appointed over his own property. 53 Corpus Juris 30; note Cameron v. Groveland Imp. Co., 72 Am.St.Rep. 32.

In ejectment suits, complainants, disclosing a probability of success in the suit, defendant being insolvent and collecting rents, a receiver may be appointed (Hereford v. Hereford, 134 Ala. 321, 32 So. 651), but under other and different circumstances receivership, in aid of ejectment, has been denied. Ramage v. McDowell, 227 Ala. 675, 151 So. 849.

True, plaintiffs in the ejectment suit, who were made parties defendant to Wallace's bill seeking a receivership, joined in the petition for the appointment of a receiver. But this adds nothing to the validity of the order making the appointment, as the only pleadings on file in the cause (and the sworn bill and amendments thereto were the only matters upon which the order rests) were for the purpose of showing right and title in complainant Wallace, and that plaintiffs in ejectment were without right or title.

Manifestly, without a disclosure of probability of success on the part of these plaintiffs, the appointment would not be justified under all the authorities. The propriety of the appointment must, therefore, rest upon the allegations made in Wallace's behalf. He appears to be concerned as to the damages for detention sought against the defendants, including himself, and avers the other defendants are insolvent and cannot be made to respond in damages. But he is confessedly in possession of only a part of the land, and this appellant in possession of a large number of acres under claim of ownership.

We can see no ground for apprehension on his part that he will be...