Savage v. Johnson

• Decision Date: 19 January 1899
• Citation: 125 Ala. 673,28 So. 547
• Parties: SAVAGE ET AL. v. JOHNSON.
• Court: Alabama Supreme Court

28 So. 547

125 Ala. 673

SAVAGE ET AL. v. JOHNSON.

Supreme Court of Alabama

January 19, 1899

Dowdell and Haralson, JJ., dissenting.

Appeal from city court of Anniston; James W. Lopsley, Judge.

Suit in equity by T. L. Johnson against J. H. Savage and another. From a decree in favor of plaintiff, defendants J. H. and D C. Savage appeal. Reversed.

On May 10, 1894, T. L. Johnson filed a bill in the present case, in which he averred that during the summer of 1892, and prior to September 1st of said year, the firm of Pinson Bros. & Co. was engaged in the general retail hardware business in the city of Gadsden; that said firm was composed of R. T. Pinson Thomas H. Amberson, and M. L. Hicks; "that during the month of April, 1892, said firm of Pinson Bros. & Co. became indebted to complainant in the sum of $2,650 for the purchase of a stock of hardware"; that, of this amount, $500 was paid at the time of the purchase, and for the balance of the purchase price ten promissory notes for $200 each, and one promissory note for $150, were signed by said R. T. Pinson Thomas H. Amberson, and M. L. Hicks; that said notes were not paid at maturity, and judgment was recovered thereon against the makers of said notes, which judgments were owned by the complainant at the time of the filing of the bill. It was then averred in the bill that prior to September 1, 1892 after one or more of the notes given by said Pinson, Amberson, and Hicks had become due, and the makers thereof were sued, said Pinson became distrustful as to the management of the mercantile business, and feared the result of said claims being reduced to judgment, and apprehended that the stock of merchandise would be sold under execution issued on said judgment, which would result in great loss to the owners of said goods; that, meeting James H. Savage, who was an attorney at law, he sought the advice of said Savage "as to the best course to be pursued in order that the stock of merchandise should not be sacrificed at forced sale by the sheriff, and the greatest possible amount should be realized therefrom for the benefit of the creditors of said firm of Pinson Bros. & Co., and said firm itself"; that said Savage advised Pinson that the best course to be taken was the appointment of a receiver by the court of chancery to take and sell such merchandise, and that "all persons interested would be fully protected by the fact that the receiver, when appointed, would be required to execute a bond with good security in a sum sufficient to cover everything that might come into his hands"; that Pinson agreed with Savage that this was the proper course to pursue, and instructed him to take the necessary steps to procure the appointment of a receiver; that on or about the 1st day of September, 1892, the said J. H. Savage returned to Gadsden, accompanied by his brother, D. C. Savage, and informed the said R. T. Pinson that said D. C. Savage had been appointed receiver for the property of the firm of Pinson Bros. & Co., and had qualified by giving the proper bond; that thereupon said J. H. Savage and D. C. Savage went to the storehouse occupied by Pinson Bros. & Co., and told those in charge of the business that they had been appointed receivers of said stock of merchandise, and had qualified by giving the bond required, and demanded possession of all the stock of goods and all of the assets of said firm; that said M. L. Hicks, who was in charge of the store at the time, believed said statements to be true, and surrendered to said J. H. Savage and D. C. Savage all the assets of said firm, including the stock on hand, the books, accounts, notes, and other evidences of debt; that, after the surrender of said stock of goods to J. H. Savage and D. C. Savage, they assumed entire control, selling and disposing of as many of said notes as possible for cash, and collecting as much as they could on the notes and accounts of said firm; that to all who made inquiry they represented themselves to be receivers, and were so considered and treated; that, at the time the goods and the assets of the firm were taken possession of by said J. H. and D. C. Savage, they were of the value of five or six thousand dollars, and that notwithstanding such large amount of goods, notes, and other assets obtained from said Pinson Bros. & Co., by J. H. and D. C. Savage, ostensibly for the benefit of the creditors of said firm, no part of said goods, or the money received or collected for same, has ever been accounted for or paid over to any one having the right to receive the same by said J. H. Savage and D. C. Savage, with the exception of a small amount paid to the landlord for rent, and on account of a judgment recovered by the First National Bank against said firm. It was then further averred in the bill that no proceedings were ever had in any court for the appointment of a receiver for the assets of Pinson Bros. & Co., and no such appointment had ever in fact been made, but that the said James H. and D. C. Savage made their false and fraudulent representations as to the appointment of receivers, and performed their acts of control over the assets of said firm, for the express purpose of hindering, delaying, and defrauding complainant and the First National Bank of Gadsden in the collection of debts which were alleged to be due to them from the firm of Pinson Bros. & Co. R. T. Pinson, M. L. Hicks, Thomas H. Amberson, J. H. Savage, and D. C. Savage were parties defendant, and the prayer of the bill was that J. H. Savage and D. C. Savage be decreed to be trustees ex maleficio, for the benefit of the complainants and the other creditors of Pinson Bros. & Co., as to the property of said firm which went into the hands of said Savages, and that they both be required to account for the value thereof, and that reference be had to the clerk of the city court of Anniston to ascertain the value of said property, and also the amount due to complainant from Pinson, Hicks, and Amberson, and that the said James H. Savage and D. C. Savage be required to pay into court the value of the property so ascertained to have been obtained by them, with interest, or at least a sufficient amount to satisfy the debts of the complainants and such other creditors as may be made parties to the bill. There was also a prayer for general relief. The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. On the submission of the cause on the pleadings and proof, a decree was rendered on June 6, 1895, in which it was declared that the complainant was entitled to the relief prayed for in his bill of complaint. This decree is copied in the opinion. In accordance with the order of the court, as contained in the decree of June 6, 1895, the register held a reference; and, upon the coming in of his report, the judge of said court, on June 3, 1896, rendered a further decree. In this decree all of the exceptions to the finding of the clerk upon the reference were overruled, with the exception of one. The court then proceeded to correct the report of the register as to the balance with which J. H. and D. C. Savage were chargeable, and made a statement thereof in his decree, showing such balance to be $588.22. The court then proceeded as follows: "It is therefore ascertained, adjudged, and decreed that the amount of the balance of the assets of the said firm of Pinson Bros. & Co., with which said defendants J. H. and D. C. Savage are chargeable as trustees is the sum of five hundred and eighty-eight 22/100 dollars. And it is ordered, adjudged, and decreed that the said complainant have and recover of the said James H. Savage and D. C. Savage the said sum of five hundred and eighty-eight 22/100 dollars, with interest from November 1, 1895, and with the costs in this behalf expended, for which let execution issue." From this decree the defendants James H. Savage and D. C. Savage prosecuted the present appeal. The first six assignments of the appellants were based upon the decree rendered on June 6, 1895, and the remaining eight assignments of error were based upon the decree rendered on June 3, 1896. In this court there was a motion made to strike the first six assignments on the ground that they related to an interlocutory decree which was rendered more than 12 months before the appeal in the case was taken.

Thos. W. Coleman, Jr., for appellants.

Cassady, Blackwell & Keith, for appellee.

DOWDELL J.

The appeal in this case was taken on the 18th of June, 1896, from a decree of the city court of Anniston, rendered June 3, 1896, confirming the report of the register. The original decree under which this reference was held and report made was rendered on June 6, 1895. This decree was rendered upon a final submission of the cause of the pleadings and proof, and, by its express terms, settles and determines all of the equities of the bill, leaving nothing to be done, but a simple reference to the register to state an account between the parties. Under the authority of Garry v. Jenkins, 109 Ala. 471, 20 So. 8, and the cases there cited, the decree of June 6, 1895, is a final decree, in every essential, and from which an appeal would lie. The first six assignments of error relate to this decree, or to interlocutory orders prior thereto; and, the appeal having been taken more than 12 months after its rendition, the motion to strike these assignments must prevail.

The seventh, eighth, ninth, and tenth assignments of error are to the effect that the court erred in the decree of June 3, 1896, in holding James H. and D. C. Savage as trustees for complainant. Upon an inspection of the record, we find that this question was determined in the final decree of June 6, 1895.

The eleventh and twelfth...